Whether it’s during fashion shows, commercials, TV shows or in various events, the use of models is frequent or even systematic. To benefit from such service without making any mistakes, it is necessary to delve into the complex and protective French legal regime of modeling.

Who is a model?

Article  L. 7123-2 of the French Labor Code stipulates that « Any person who is responsible for: 1° Either presenting to the public, directly or indirectly by reproduction of his or her image on any visual or audiovisual support, a product, service or advertising message is considered to be exercising a model‘s activity, even if this activity is carried out only on an occasional basis; 2° Or to pose as a model, with or without further use of his image.« 

This is confirmed by the circular of 20 December 2007, which states  that « it does not matter in this respect the notoriety or age of the person and whether he/she carries out this activity on an occasional or professional basis, or whether he/she exercises another profession as his/her main occupation« , and for example, that « students  or young children hired to participate  in the presentation of products or the enhancement of a brand at an event must be considered as models « .

On the other hand, artists recording voice-overs and performers, whose intervention is not limited to the sole use of their image, are excluded from the scope of modelling. In this respect, the case law considers that the « play of physiognomy and interaction with a partner » characterize the qualification of performer (Conseil d’Etat n°167585, 17 mars 1997 ; Cass. Soc. N°95-43.510, 10 février 1998). However, real stage play is required. (Cour d’appel de Paris, 4^ème ch. 21 janvier 2005).

Are model employees or independent contractors ?

According to the circular of 20 December 2007, it follows that « a model cannot be considered as a self-employed/independent worker and be paid on invoice« . Therefore, the situation of « freelance » models is most of the time contrary to the provisions of the  French Labor Code as interpreted by the circular.

Article L. 7123-3 of the French Labor Code clearly sets out a presumption of salaried employment for modeling activity: « any contract by which a person secures, in return for remuneration, the assistance of a model is presumed to be an employment contract ».

This presumption is very strong and is not rebutted by the fact that there is no relationship of subordination between the model and the employer (Article L.7123-4 of the French Labor Code). The classification of an employment contract is retained regardless of the qualification given by the parties, the method, and the amount of remuneration.

This specificity of French legislation makes modelling subject to labor law as well as to the general social security system. It should be noted that models do not benefit from the special social security scheme for intermittent workers.

Hire a model without a model agency?  

Model agencies are numerous, highly influential, and have in fact a virtual monopoly when it comes to modeling activities.

Pursuant to Article L 7123-12 of the French Labor Code,  » Any natural or legal person whose activity consists in making available to users, for a fee, models that he hires and remunerates for this purpose, is considered to be operating a modeling agency. »

The activity of a modeling agency is strongly regulated and requires securing a license and justifying a financial guarantee.

The French Labor Code also regulates relations in the context of the provision of models to third parties and when a model is made available by a modeling agency, the contractual relationship is tripartite: an employment contract binds the model to the agency and a contract for the provision of the model binds the agency to the third party (brand, producer of the event, advertising agency).

This tripartite relationship is highly regulated. Employment contracts must include mandatory information in addition to those imposed by general labor law legislation and their drafting is governed by strict deadlines, otherwise they will be reclassified as a contract of indefinite durations (Cour d’appel de Paris, 10 novembre 1998). Although he does not carry the employment contract, the producer, as client of the agency, will be responsible for the conditions of performance of the employment contract pursuant to Article L. 7123-18 of the Labor Code.

However, the French Labor Code does not prohibit the beneficiary of the benefits from hiring a model directly, without the intermediary of an agency.

The 2007 circular expressly provides for this possibility, but provides for it as follows:

« To be considered the beneficiary of the agreement and to be able to hire a model directly, three conditions must be met:

• the existence of a relationship of subordination between the two parties at the time of performance of the service;
• the performance of a service in relation to the beneficiary’s corporate purpose;
• compliance with the rules governing the use of fixed-term employment contracts, if such a contract is available« 

However, as the hiring of models does not fall within the scope of the usual fixed-term contracts (intermittent agreement), it is therefore necessary to comply with the general conditions for the conclusion of fixed-term contracts, which makes it very difficult to hire models directly.

What is the remuneration for the model?

The remuneration due to the model is divided in two parts: the remuneration for the service, which is presumed to be a salary, and the remuneration for the sale or exploitation of the recording of the image by the employer or any other user. The physical presence of the model shall no longer be required to exploit such recording and  the remuneration shall not be function of the salary received for the production of the recording but depends of the proceeds from the sale or exploitation of the registration. This second remuneration is not considered as a salary and must be the subject of a separate agreement (Article L. 7123-6 of the Labor Code).

For models hired through an agency, article 16-2 of the National Collective Agreement for Models expressly opens up the possibility of a flat-rate remuneration for the models’ image rights when « the user cannot determine exactly in advance the final quantities ».

As such, the transfer of rights to exploit photographs made to an agency – or a publishing or communication company – does not authorize a third party to publish them, without the express consent of the model, or an assignment agreement validly concluded between the company holding the exploitation rights, with the third party who publishes the photographs. However, « no legal or regulatory provision provides for remuneration for the benefit of a professional model proportional to the exploitation of his image » (Cass. 1^re civ., 11 déc. 2008, n^o 07-19.494, D, rejet, CA Paris, 6 juin 2007)

Companies in the fashion and media sectors must not disregard the meticulous French legislation that applies to models, otherwise they risk to see their relationships with models being reclassified as a non-limited employment agreement with serious consequences.