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The future of fashion embraces artificial intelligence with its consequential legal issues that we addressed in this article.
In recent times, Artificial Intelligence seems to be the latest trend in the fashion industry: all retail giants have adopted an algorithmic approach to fashion and between apps that provide feedback or advice on one’s outfits and interactive dressing rooms with mirrors that recognize clothes worn and suggest others to match based on style, color and mood.
The creation of AI-based fashion items takes the relationship between innovation and creativity to the next level and introduces a number of questions, sometimes still unanswered. Who owns the AI creations? Can AI infringe on the intellectual property rights of third parties? What kinds of personal data are collected by AI? Is the resulting processing subject to data protection regulations? Will AI increase or decrease creativity in the fashion industry?
The authorial protection of works created with artificial intelligence
According to Italian law, creative works must be original to obtain copyright protection, and traditionally the originality requirement has been linked to the natural person of the author. In fact, according to Article 6 of Law No. 633/1941 (Copyright Law), “the original entitlement to the acquisition of copyright consists in the creation of the work, as a particular expression of the intellectual work” of the author. Therefore, machines and AI seem to be excluded from the notion of authorship.
This position was reiterated in a recent decision by the U.S. Copyright Office, which denied registration of AI-generated images on the grounds that they were considered unprotectable under U.S. copyright law. Indeed, the Office noted that registration of an original work is only possible if it was created by a human being since copyright law protects only “the creations of intellectual labor” that are “based on the creative powers of the mind,” and such discipline is limited to the protection of the author’s “original intellectual conceptions.”
In accordance with case law (Feist Publ’ns, Inc. v. Rural Tel. Serv.; Burrow-Giles Lithographic Co. v. Sarony) and legislation (see 17 U.S.C. § 102(a) and (b)) on copyright law, the U.S. Copyright Office has therefore held that authorial protection cannot be granted to works made by a machine or mechanical process that operates randomly or automatically without sufficient creative input or intervention by a human author. Similar conclusions were also reached in Italy with a recent Supreme Court ruling on the recognition of copyright protection on a digital work depicting a flower, created through the use of software, that was used in a past edition of the Sanremo Festival.
Indeed, in 2016, RAI, the Italian national TV broadcaster, used a digital work depicting a flower found on the web as a set design for the famous song festival without, however, seeking permission from the author, who had created it some time earlier through the use of software. For this reason, two years later, the author therefore sued RAI before the Court of Genoa, claiming infringement of her copyright in the work.
Confirming the decision of the judges at first instance and on appeal, the Supreme Court dwelt on the legal concept of creativity, holding that it does not coincide with that of creation, originality and absolute novelty. According to this interpretation, the creativity protected by Italian law is given by the personal and individual expression of an objective content belonging to the categories listed in Article 1 of the Copyright Law. Therefore, an intellectual work can be protected provided that a creative act, albeit minimal, susceptible of manifestation in the outside world can be found in it. In the case at hand, the digital image used in the set design of the Sanremo Festival did not simply represent a reproduction of a flower, but was a true reworking, deserving of protection under copyright law, since it was an original and creative idea coming from its author. The Supreme Court therefore rejected RAI’s defense that the author’s process was limited to the choice of an algorithm and the approval of the result generated by the software, pointing out that the use of software does not exclude the elaboration of an intellectual work protectable by copyright, but only requires that its rate of creativity be scrutinized more rigorously.
Therefore, algorithmic works of art are eligible for copyright protection as long as human choices are involved. In the case of a fashion collection designed entirely by AI, the person who developed the software could thus enjoy copyright protection for both the software itself and the work created through its use and presumably be held liable in the event of infringement of third parties’ intellectual property rights.
AI in the analysis of “big data”
In such a data-driven system, fashion brands are increasingly investing in AI in order to offer their customers innovative products and services. In fact, fashion houses are not only aiming at using the algorithmic works we have just analyzed, but they are also reinventing their e-commerce sites and channels by hiring virtual sales assistants, e-concierges and chatbots capable of interacting with customers to help them choose and try on – even from home – their favorite outfits, as well as to enable them to enjoy a new and exclusive shopping experience.
In this new reality, a key role is certainly played by data collected through websites, online applications and social networks that enable brands to understand which outfits are in vogue and predict new trends. The fuel of the fashion industry can, in fact, be found precisely in the use of so-called big data and predictive AI systems. When AI is integrated on digital properties, brands are indeed able to profile their customers and users in order to understand their interests and preferences, create targeted marketing campaigns and propose a personalized service based on their needs.
However, the profiling of users and customers of brands through big data analysis and the use of algorithms is considered processing of personal data for all intents and purposes, and for this very reason, fashion houses that decide to operate online by offering innovative services to their customers must contend with the requirements of the applicable data protection legislation and, in particular, with the obligations and responsibilities enshrined in the GDPR.
For example, fashion houses must collect and process – for the time strictly necessary – only personal data that is actually useful to achieve the purposes for which it was collected, in compliance with the principle of minimization set forth in Article 5 of the GDPR. Not only that, in order to lawfully collect and process personal data, brands are required to identify the correct legal basis, which – in the case of optimized profiling using AI systems – must be found in the consent of the data subject. In addition, the GDPR provides for specific information and transparency obligations: in fact, Article 13 of the GDPR requires the data controller to provide certain information about the processing carried out, its purposes and methods, as well as the existence of an automated decision, including profiling, the rationale behind its adoption and the consequences that may result for data subjects. Lastly, it is also essential to carry out a Data Protection Impact Assessment (DPIA) pursuant to Article 35 of the GDPR, as this type of processing could be invasive, posing a high risk to the rights and freedoms of data subjects.
Online user tracking and profiling activities using algorithms and other big data analysis tools can also be optimized through the use of mechanisms for combining data collected directly from users or inferred from user behavior (e.g., so-called custom audience matching and look-alike activities), including through cookies and other tracking technologies. Such mechanisms are not only used to monitor users on the web, but also to influence their behavior and choices, particularly in relation to their purchasing decisions as consumers, sometimes undermining individual autonomy and freedom.
For this very reason, brands are required to take specific precautions when they intend to use user tracking mechanisms. The Garante per la protezione dei dati personali also intervened on this point, which, with its Guidelines on cookies and other tracking tools of June 10, 2021, reiterated the circumstances under which the installation and use of cookies (or other tracking tools) can take place on users’ terminals and the rules for analyzing data collected through such technologies. Specifically, in order to lawfully install cookies or other tracking technologies, brands operating online must, among other things, (i) inform users with a short notice (so-called “cookie banner”) that links to an extended notice (so-called “Cookie Policy”) outlining the purposes and methods of processing data collected through such technologies, and (ii) collect specific consent, i.e., a clear affirmative action by the user who knowingly consents to the installation of cookies.
When AI becomes real, Computer Generated Imagery IS Born
Through the use of AI, brands can not only profile users and analyze large amounts of data, but have the ability to offer users renewed and innovative shopping experiences. In fact, AI makes it possible to generate – and bring to life – different real-world personalities in the virtual world as well. These personalities are real digital robots that simulate human features, qualities, expressions, behaviors and peculiarities in a hyper-realistic form, even beyond common stereotypes. A brilliant example of this are virtual influencers, i.e. CGI (computer-generated imagery) who, in their virtual form, are promoters of the most renowned brands, sponsoring their products and services, but also acting as ambassadors of principles and rights.
Virtual influencers are the latest trend in social media. In fact, social networks, to date, host more than 200 virtual influencers; among them, the most followed are Nefele, the first Italian virtual influencer spokesperson for the values of inclusion and diversity, the twins Eli and Sofi, Shudu, Lil Miquela, Noonoouri, Rozy and the virtual streamer CodeMiko famous on Twitch. There are already many fashion brands that are turning to these CGIs to advertise their products. Examples include Rihanna, who chose Shudu to promote her cosmetics brand Fenty Beauty, and Prada, Chanel and Fendi who have been collaborating for years now with the famous Lil Miquela.
This proves that even robots can be carriers of new fashions. Sometimes, collaborating with virtual influencers rather than real people even brings with it advantages for fashion houses. In fact, if in the real world there is always an alea of uncertainty about human action given by the free will of people, in the virtual world, brands can exercise total control over the influencer such that they can decide how the influencer should present himself or herself to their followers both from an aesthetic and communicative point of view, also in order to avert as much as possible reputational damage resulting from behaviors or initiatives outside the sponsorship of the brand itself.
Although virtual, influencers must still comply with the rules imposed by real-world regulations. For this reason, transparency obligations in advertising also apply to these new virtual forms of life. Again with a view to transparency, this is compounded by the need for the very identity of these characters, who are not real, to be made explicit on the platforms through which they convey advertising messages, so that the user is aware that he or she is interacting with an avatar and not a human.
This is in light of the idea that the focus should be on developing technologies that are both ethically and morally reliable, such that they are a useful tool for society and commensurate with human needs. Again, it is interesting to note how avatars and AI systems can be linked to forms of image “abuse,” such as in the case of deepfakes, which could reveal decidedly more serious aspects in terms of the violation of personality rights, such as possible damage to a person’s image, reputation and digital identity, non-consensual dissemination of private images, potential risks of phishing-type attacks, vishing, identity theft and violation of security measures based on biometric recognition. In this context, it is therefore essential that the systems used are cyber resilient, as well as the importance of adopting incident response schemes capable of remediating the negative impacts on business and protecting the reputation of the virtual influencer as well as that of the brand, including by preparing a “post-attack” remediation plan that can mitigate the possible implications in terms of claims or other forms of liability.
It is therefore clear that the development of these new technologies requires regulatory intervention such as to prevent their abuse. One example in this regard is Meta, which has begun working with its developers and experts on an Ethical Framework to establish clearer boundaries on the use of avatars and, in particular, so-called virtual influencers, both in terms of potential harms and benefits. To date, the primary goal for Meta appears to be transparency and the importance of always providing the ability to split between what is real and what is not.
On a similar topic, it may be of interest, “The Future of Fashion: Exploring the creativity of collections generated by artificial intelligence and its legal issues“.
Authors: Deborah Paracchini and Valentina Mazza from DLA Piper
