Ontario Bolsters Child Performer Rights, but excludes fashion models

On February 5, 2015, the Ontario Government rolled out new legislation that specifically targets Child Performer’s employment rights in the entertainment industry.

CanadaFashionLaw has followed a movement that has been happening south of the border in terms of protecting child talent, and is delighted that Ontario is also taking the necessary precautions to protect talented youth.  However, it appears that the Ontario government did not specifically consider fashion models, much to CanadaFashionLaw‘s disappointment.

Abiding by this legislation is mandatory and employers cannot “contract out” of the provisions.  Below is a summary of the salient provisions of the legislation:

• Who does it pertain to? The act pertains to child performers under the age of 18, who perform work or supply services as a performer (including a background performer) in the entertainment industry for monetary compensation.  However, the act stipulates that an employer cannot employ a baby less than 15 days old for recorded entertainment or a child that is younger than 2.5 years old for live entertainment.
• What is the legislation applied to? The legislation is limited to the live and recorded entertainment industry.
• What is included as part of the entertainment industry?  The scope of what qualifies as part of the entertainment industry is restricted to performers in: a) live performing arts in theatre, dance, music, opera or circus or b) visual or audio visual recorded entertainment that is played in cinemas, the internet, radio, television broadcast, or a recorded device, such as a DVD.
• An obligation of full and continued disclosure. Prior to employing a child performer, the prospective employer must have a meeting with the child’s parent/guardian providing full disclosure about the gig, including a description of the role the child will play, the location and hours of the rehearsals and performances, any health and/or safety hazards the child may be exposed to, the precautions the prospective employer will take to safe guard against those hazards, any special skills required of the child and any special effects that the child may be exposed to.  The child has the option of being present at this meeting.  Should any of these items be changed, the employer must provide the parent/guardian with written notice.  The changes cannot be implemented without the parent/guardian’s consent.
• Written employment contracts are mandatory.  Although fantastic that this is included, CanadaFashionLaw doesn’t understand why anyone would provide services without a written contract.
• Supervision.  Any child performer under 16 years ago must be accompanied by an authorized chaperone to/from the workplace.  The parent/guardian must provide its authorization in writing.  However, if the travel is overnight, the parent/guardian must accompany the child at all times.  The employer is responsible for the overnight travel costs.  A parent/guardian or authorized chaperone must be present during the child’s performance.
• Tutoring.  The employer must set aside time in the work schedule for the child to receive tutoring.
• Creation of trust fund.  If the child earns more than $2,000 on a project, 25% of the earnings must be set up in a trust fund, which the child can access when he/she reaches 18.  However, if the child is part of a trade union or professional association, and the union/association provides for a trust fund deposit, this provision does not apply.
• Maximum hours of work and overtime.  The legislation sets the maximum hours and overtime a child can work in the day, which varies according to age and whether the child is performing in live or recorded entertainment.
• Free hours.  The legislation also stipulates that the child must have a specific number of minimum hours free during the work day and also during the week.
• Enforcement.  The act refers back to specific provisions in the Employment Standards Act with respect to enforcement.

Interestingly, (but perhaps not surprisingly), the fashion industry does not easily tie in with this legislation.  It appears to be geared towards Ontario’s golden child entertainment industries: film, television, radio and music, with a few additional industries, such as dance, opera, theatre and, even the circus.  Fashion is not itemized as an industry.  As such, it is difficult to make the case that child models will be protected by this legislation.  At best, child models may be protected under this legislation if they are included in a recorded commercial that is replayed in cinemas, on the internet or on TV.  Frustratingly, this is another example of how the Ontario government has shortchanged the fashion industry (perhaps to the employers’ delight).

H&M Sues Forever 21? Beach please!

In an interesting twist, arguably the two most common fashion design piracy defendants are pitted against each other. H & M Hennes & Mauritz AB (“H&M”) has issued a complaint against Forever 21, Inc., in the US District Court Southern District of New York. Below is a comparative image of the tote bags at issue:

(H & M Hennes & Mauritz AB)                    (Forever 21, Inc.)

There is no doubt about it – there is a stark similarity between the designs.

H&M, which professes to be the second largest global clothing retailer, first sold its BEACH PLEASE tote bag in the US in April 2014.   As of July 2015, it sold thousands of BEACH PLEASE tote bags globally. H&M formalized its copyright to the design by securing a copyright registration, which was granted on June 12, 2015. H&M alleges that Forever 21 subsequently commissioned a Chinese-based manufacturer to produce infringing designs, which were sold globally. H&M has reason to believe that Forever 21 has profited substantially from sales of the BEACH PLEASE tote bag.

H&M is seeking the following relief:

• Forever 21 be enjoined from:
  • creating, importing, purchasing, distributing, displaying, selling or offering to sell tote bags that infringe H&M’s BEACH PLEASE tote bag
  • using H&M’s intellectual property rights regarding the tote bags;
  • inducing others to commit infringing acts.
• An accounting of Forever 21’s profits derived from the advertising, promoting, marketing, purchasing, distributing, selling or offering of the infringing products
• Damages
• Costs of litigation

H&M bases its complaint on 5 grounds:

• H&M’s graphic is subject to copyright protection. Forever 21’s graphic is substantially similar, if not virtually identical, to that of H&M, thereby constituting copyright infringement.
• The graphic is non-functional, inherently distinctive and has acquired secondary meaning. As such H&M asserts that the BEACH PLEASE design functions as trade dress; Forever 21’s unauthorized use of the BEACH PLEASE logo constitutes trade dress infringement.
• Forever 21’s unauthorized use also constitutes a false designation of origin.
• Moreover, Forever 21’s unauthorized use constitutes an attempt to pass off its products, constituting statutory and common law unfair competition against H&M.

What is interesting to the fashion law community is that H&M and Forever 21 are notorious defendants in the fashion industry. In fact, H&M takes note of this trend with respect to Forever 21 stating in the Complaint: “[Forever 21] has also been accused of copyright violations in the past”. So to a large extent, we have the kettle calling the pot black. However, it is interesting that they are now warring amongst themselves. Perhaps it is karma; perhaps it is just business. Nonetheless, in this instance the magnifying glass is focused on Forever 21. In the fashion law community, Forever 21’s disregard for intellectual property rights and propensity to resolve matters outside of litigation has some wondering whether this is all a part of its business strategy. It may simply be cheaper to pay an undisclosed settlement sum to the designer rather than sourcing new designs or paying licensing royalties. It would not be shocking if this case settled, but it sure would be interesting if it did not!

Starting Off 2015 with a Bang

Happy New Year Fashionistas!  Already 2015 is scheduled to be an exciting and busy year!

CanadaFashionLaw has some great news to share!

1. Presentation at the Toronto Fashion Incubator (January 26)

CanadaFashionLaw is delighted to be a mentor with the Toronto Fashion Incubator.  As part of her ‘mentor-ly’ duties, CanadaFashionLaw will be presenting at TFI on how designers can best protect their fashion designs.  If you’re looking to sign up, click here.

2. Annual General Meeting for the Fashion Group International (January 27)

Save the date for FGI’s AGM, which will be held on January 27.  CanadaFashionLaw is delighted to be nominated as co-chair for FGI, along with Roger Gingerich of Gingerich Group.

If one of your new year resolutions is to roll up your sleeves and get involved in the fashion community, these are 2 of the top fashion organizations in Canada!

If you attend either or both of these events, be sure to say hi!