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Artificial intelligence is revolutionizing the way fashion companies create their products, but what legal issues can arise and who is the author of the collections? Fashion is a constantly evolving industry that relies on creativity, trends and the ability to anticipate consumer tastes. In recent years, artificial intelligence (AI) has begun to revolutionize the way fashion companies create, produce, and sell their products.
Think that the global value of artificial intelligence in the fashion industry was estimated at USD 270 million in 2018 and is expected to grow to USD 4.4 billion by 2027. In this article, we will explore the relationship between fashion and artificial intelligence and look at the possible legal implications of this innovation, particularly with regard to identifying the author of the work.
Especially in recent weeks, artificial intelligence generated technology has gained popularity and there has been increasing talk about AI-generated self-portraits, images, and art. It is precisely the use of artificial intelligence to create images of entire fashion collections that could become one of the most innovative ways to take advantage of this incredible technology in this constantly evolving field, raising questions, however, about who is the author.
Generative design software already exists that uses algorithms to generate thousands of different designs from which the designer can choose to create unique fashion collections. One such program is AiDa (“Interactive Design Assistant for Fashion”), designed to help designers create an entire collection of products from simple sketches. Such an innovative system is in fact capable of recognizing, detecting and generating images. The program was unveiled last December 19, 2022 in Hong Kong at the “Fashion X AI: 2022-2023 International Salon” fashion show. The fashion show featured collections developed by several international designers and young talents by leveraging AiDa’s artificial intelligence system. On the platform, designers can upload sketches, materials and color boards to a virtual mood board, and based on those materials, the software algorithm generates designs that designers can then modify, adding details, accessories, changing colors and reshaping the designs according to their personal taste and style. The most mind-blowing element of this system is that it can produce dozens of different images in a matter of seconds.
Even on social media, the phenomenon of creating images of fashion collections using AI technology has exploded. Think of the Instagram page @ai_clothingdaily – which posts “Artificially Generated Clothing” every day – which has gone viral not only because the products shown are extremely credible, but also because of the very quality of the designs offered.
Given that artificial intelligence software will certainly not be able to replace humans, who will always remain at the center of creative and productive activity, the question then arises as to whether such technologies can become an indispensable tool to support and inspire fashion designers in the creation of their fashion collections, perhaps showing and proposing images of fashion collections made in a style or design that the designers themselves would never have considered had they not been created by AI.
Inevitable, however, is the question of whether these AI-created fashion collections can actually be protected from a legal perspective under copyright law as well.
The use of AI-based technologies that can create “creative” or “ingenious” works raises the question of copyright protection for works and products generated by artificial creativity. The operation of these algorithms, trained with millions of images (the use of which may be limited), raises some issues regarding intellectual property rights-and, most importantly, copyrights-because the images of fashion collections generated by such AI systems are assimilated to works of a creative nature. Therefore, the question arises as to what intellectual property rights can be claimed over an image of a fashion collection created by an AI system, and who the author is.
To better understand the issue, one must first ask whether it makes economic sense to attribute ownership of the work, and thus the resulting right of economic exploitation, to a “computer.” It is clear that there is no utility in attributing ownership of the patrimonial rights to the work to the software that generated it: in fact, this right can only be exercised by the (human) developer of the AI system that created the image.
Furthermore, from the point of view of potential legal issues, it is necessary to understand whether national, European and international copyright law subordinates the legal protection of a fashion collection generated by artificial intelligence or with the support of AI to the requirement of human input in its creation.
For example, in the Berne Convention for the Protection of Literary and Artistic Works of 1886, reference is made several times to the concept of “author,” though without ever stipulating its human nature. Therefore, in the abstract, it would seem possible to protect a work created by an artificial author. Other international and European legislation, on the other hand, takes an approach focused on the object of copyright protection, not including any reference to the creator of the work. Similarly, Italian copyright law provides that “works of the mind of a creative character belonging to literature, music, figurative arts, architecture, theater and cinematography, whatever their mode or form of expression, are protected under this law.” Again, any reference to the possible requirement of human contribution for the purpose of protection is omitted.
Thus, it appears from the copyright regulations that a work, such as might be the image of some pieces in a fashion collection, generated by a human-developed AI system can benefit from the same authorial protection reserved for works that are the direct product of human creativity, unmediated by the use of AI.
However, many doubts still remain as to who should be identified as the author of the work. On this point, the U.S. Copyright Office (USCO) recently confirmed that images created by AI systems are not copyrightable. This conclusion was reached in the context of the application to register the graphic novel “Zarya of the Dawn,” whose illustrations were created by an AI system. In fact, although the author independently wrote the text of the book, she allegedly used the Midjourney AI image generator to create the book’s illustrations, but did not indicate this in the registration application. In the United States, in fact, Copyright registrations are reserved for works generated by human beings. Therefore, the USCO can deny a registration if the work is not sufficiently creative or if the work does not meet the requirements set forth in U.S. Copyright law. Thus, the USCO recognized the author of the novel as the author of the work, as well as of the selection, coordination and arrangement of the written and visual elements of the work, recognizing authorial protection to this human contribution. However, the same Office held that the images within the work could not be copyrighted because they were generated by Midjourney technology.
Therefore, when the work-whether it is a portrait of a subject or a sketch of a couture dress-is created through an AI system, the terms of use of the chosen platform must be checked. In fact, although the work created by such systems originates from the input (the so-called “prompt”) of the user, which may consist of one or more words or a description of the desired result, the algorithm used to generate such an image has a well-identified owner, and it is the latter who will define the intellectual property rights related to the work created. In other words, the owner of the algorithm has control over the intellectual property of the work generated through its algorithm.
Certainly, the generation of images through the use of AI systems is an interesting innovation that raises many question marks regarding intellectual property rights and requires action by the legislature. However, until appropriate regulation is introduced, it will be necessary to rely on the regulation provided by the platforms used to generate such works.
It is therefore clear that AI is revolutionizing the world of creatives, and so is the world of fashion, changing the world in which it can be created, produced and sold. Although rights protection issues are still controversial-especially with respect to the identification of the author of the work-we are convinced that AI, if harnessed responsibly, can bring significant benefits to the entire fashion industry, inevitably facilitating the processes of product creation or production.
The relationship between fashion and artificial intelligence is bound to evolve more and more over time with new legal issues that will arise. Therefore, it will be crucial not to miss all the new challenges and opportunities that this new combination will bring.
On a similar topic, you may find interesting the article “Unlocking the Potential of Generative Artificial Intelligence (AI): Navigating the Legal Issues and Unleashing Its Creativity“.
Photo by Steve Johnson on Unsplash
