The Legal Status of AI-Generated Fashion Designs: Ownership Authorship and IP Protection

ABSTRACT

Artificial intelligence is no longer a distant concept in the fashion industry — it is already here, generating textile patterns, silhouettes, and full collection concepts at a pace and scale that no human designer could match alone. Yet the legal frameworks that govern intellectual property in fashion were built on one foundational assumption: that creativity is inherently human. The Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights, and domestic statutes such as the Copyright Act 1957 of India all tie authorship and ownership to a natural or legal person. When an AI system produces an original fashion design autonomously, these frameworks offer no clear answer as to who owns it, who authored it, or how it may be protected. This article critically examines this legal vacuum through the lens of international IP law, with particular reference to India, and argues that the existing frameworks are structurally inadequate to address the challenges posed by AI-generated fashion designs. It further proposes that urgent multilateral reform, led by the World Intellectual Property Organization, is necessary to bring legal coherence to this rapidly evolving field.

1. INTRODUCTION

Fashion has always been at the intersection of art and commerce, but in recent years it has found an unexpected new partner: artificial intelligence. Tools such as Midjourney, DALL-E, and proprietary AI systems developed by luxury houses are now capable of generating highly sophisticated design outputs — from intricate fabric prints to complete garment concepts — based on nothing more than a text prompt or a dataset of prior collections. The creative output is, in many cases, indistinguishable from work produced by a trained human designer.

This technological shift raises a legal question that the world’s IP frameworks are not yet equipped to answer: when a machine creates a fashion design, who owns it? The question is not merely academic. Fashion is a trillion-dollar global industry in which brand identity and design exclusivity are among the most commercially significant assets a house can hold. If AI-generated designs cannot be protected — or if the ownership of such designs is unclear — the consequences for designers, brands, investors, and consumers are considerable.

The legal problem is rooted in a single word that runs through every major international IP instrument: authorship. Both the Berne Convention for the Protection of Literary and Artistic Works and the TRIPS Agreement ground copyright protection in the notion of human creativity and human authorship.[1] India’s Copyright Act 1957 similarly defines an “author” in terms that presuppose a human being.[2] When no human being can be identified as the creative originator of a work, the entire edifice of copyright protection becomes uncertain.

This article proceeds in six parts. Following this introduction, Part II establishes the conceptual and legal framework governing copyright and design protection under international and Indian law. Part III conducts an in-depth legal analysis of the authorship and ownership questions raised by AI-generated fashion designs. Part IV discusses the leading cases that have addressed AI and IP. Part V offers a critical analysis of the gaps and proposes directions for reform. Part VI concludes with recommendations.

2. BACKGROUND AND CONCEPTUAL FRAMEWORK

To understand why AI-generated fashion designs present such a difficult legal problem, it is necessary first to understand how existing IP law protects fashion designs generally, and what the key concepts of authorship and originality mean within that framework.

Under the Berne Convention, copyright subsists in “literary and artistic works,” a category wide enough to encompass original textile prints, pattern designs, and artistic fashion illustrations.[3] The fundamental requirement for protection is originality — the work must be the author’s own intellectual creation. Crucially, the Berne Convention does not define “author” with any precision, but it is universally understood to refer to a human creator. The TRIPS Agreement, which incorporates the substantive provisions of Berne by reference, similarly presupposes human authorship without explicitly addressing the possibility of machine-generated creativity.[4]

In India, the Copyright Act 1957 defines “author” to include, in the case of a computer-generated work, “the person who causes the work to be created.”[5] This provision, found in section 2(d)(vi), was a forward-looking inclusion when it was enacted, and it does provide some basis for protecting computer-generated works. However, it was drafted with assisted human creation in mind — a programmer writing code, or a designer using software as a tool — rather than fully autonomous AI systems that operate without direct human creative input at the point of output. The distinction between AI as a tool and AI as an autonomous creator is the fault line that modern law has not yet adequately crossed.

Fashion designs in India may also be protected under the Designs Act 2000, which provides for the registration of designs that are new or original.[6] However, registered design protection is subject to similar conceptual difficulties when the design has been generated autonomously by an AI, since the Act does not contemplate a non-human applicant or originator.

At the international level, WIPO has recognised the urgency of the issue. Since 2019, WIPO has convened a series of dedicated consultations — the Conversation on IP and AI — in which member states, academics, and industry stakeholders have debated how existing IP frameworks should respond to AI-generated outputs.[7] The WIPO conversations have identified three primary policy options: attributing ownership to the AI developer, attributing it to the user who prompts the AI, or leaving AI-generated works entirely in the public domain. No consensus has yet been reached, and no binding international instrument has emerged. This absence of a global legal standard is itself a significant part of the problem.

3. LEGAL ANALYSIS

The central legal question this article addresses is deceptively simple: can an AI-generated fashion design attract intellectual property protection, and if so, who holds that protection? Working through this question requires engaging with three distinct but overlapping sub-issues: the requirement of human authorship, the challenge of determining ownership, and the adequacy of existing enforcement mechanisms.

THE HUMAN AUTHORSHIP REQUIREMENT

The requirement of human authorship is the most fundamental obstacle to copyright protection for AI-generated fashion designs under international law. Article 2 of the Berne Convention protects “every production in the literary, scientific and artistic domain” but the Convention’s entire conceptual architecture assumes a human author whose moral and economic rights are to be protected.[8] The TRIPS Agreement, in Article 9(1), incorporates Articles 1 through 21 of Berne, thereby importing the same assumption into the trade law context.[9]

WIPO’s own analysis has acknowledged this gap candidly. In its Revised Issues Paper on IP and AI, WIPO observed that existing copyright frameworks were “not designed to deal with the situation where there is no human author” and that member states face a genuine choice between adapting existing frameworks or developing new ones.[10] This is not a fringe academic concern — it is a live policy question that WIPO has placed at the centre of its IP reform agenda.

The difficulty is most acute where the AI system has operated with what might be called creative autonomy — where the human operator has done no more than select a dataset or input a broad prompt, and the resulting design is the product of the machine’s own generative processes. In such cases, it is genuinely difficult to identify any human whose intellectual creativity is expressed in the final output. Without that expression of human intellect, there is no “author” in the conventional legal sense, and therefore no copyright.

India’s position is instructive here. Section 2(d)(vi) of the Copyright Act 1957 defines the author of a computer-generated work as “the person who causes the work to be created.”[11]   On a generous interpretation, this might extend to the AI developer or the user who deploys the system. However, courts have not yet been called upon to apply this provision to fully autonomous AI outputs in the fashion context, and it is by no means certain that such an expansive reading would be adopted. The provision was enacted in a very different technological landscape and its application to modern generative AI is at best uncertain.

THE OWNERSHIP PROBLEM

Even if one accepts that some form of IP protection is theoretically available for AI-generated fashion designs, a second and equally difficult question arises: who owns it? There are at least three plausible candidates — the AI developer, the user or prompter, and the fashion brand that commissioned or deployed the AI system.

The case for vesting ownership in the AI developer rests on the argument that the creative capacity of the system is ultimately a product of the developer’s intellectual and commercial investment. A generative AI model capable of producing original fashion designs is the result of enormous research, engineering, and training — and it seems not unreasonable to reward that investment with some form of IP right. This approach is broadly analogous to the employer-owns-work-made-for-hire doctrine found in many copyright regimes, and it would provide a clear, workable rule.

The case for vesting ownership in the user is grounded in a different logic: the user makes the creative choices about what to ask the AI to produce, how to refine the output, and how to select and deploy the final design. On this view, the user is the closest analogue to a human author, and the AI is merely a sophisticated tool — much as a camera does not own the photographs it takes. This approach also has the advantage of encouraging use and deployment of AI tools in creative industries.

Fashion brands present a third category. Where a brand has commissioned an AI system to generate designs as part of its commercial operation — much as it might commission a human designer — there is a strong argument that the brand should hold the resulting IP, at least for commercial purposes. This would allow luxury houses to protect AI-generated collections in the same way they protect human-designed ones, and it would give legal certainty to significant commercial investment.

None of these solutions is entirely satisfactory under existing frameworks, and the absence of any binding international standard means that different jurisdictions may reach different conclusions — creating a fragmented global landscape that is particularly problematic for fashion, which is inherently international in its markets and supply chains.

4. DESIGN PROTECTION AND THE AI GAP

Beyond copyright, fashion designs may attract protection as registered designs under national law. India’s Designs Act 2000 protects designs that are new or original and applied to an article.[12] Again, the Act assumes a human applicant, and it does not address what happens when a design is generated autonomously by a machine. The Paris Convention for the Protection of Industrial Property, which underpins much of international design law, similarly operates within a human-centric framework.[13]

The EU AI Act 2024, while not an IP instrument per se, is relevant in this context because it imposes transparency and documentation obligations on high-risk AI systems,[14] and it requires that AI-generated content be identified as such. This raises the question of whether AI-generated fashion designs will, in future, need to be disclosed as machine-made — and what the commercial and legal consequences of that disclosure might be for luxury brands whose identities are built on human craftsmanship and creative heritage.

5. CASE LAW DISCUSSION

The courts that have addressed the question of AI and IP have, without exception, declined to extend authorship or inventorship to a machine. These cases, while not directly arising from fashion, establish the legal principles that will inevitably govern AI-generated fashion designs when the question reaches the courts

Thaler v Vidal (United States Federal Circuit, 2022)

The most significant case in this area is Thaler v Vidal, decided by the United States Court of Appeals for the Federal Circuit in 2022.[15] The case concerned an inventor named Stephen Thaler, who argued that his AI system — named DABUS — had autonomously invented a new type of food container and a flashing light beacon, and that DABUS should be listed as the inventor on the resulting patent applications. The Federal Circuit rejected this argument unequivocally, holding that under the Patent Act, an “inventor” must be a natural person. The court reasoned that the statutory language was clear, and that any change to accommodate AI authorship or inventorship was a matter for Congress, not the courts.

The significance of this decision for fashion law is considerable. While the case concerned patents rather than copyright or design protection, the underlying reasoning — that IP rights require a human creator — is equally applicable across IP disciplines. If an AI cannot be an inventor in the patent sense, it is difficult to see why it should be treated as an author in the copyright or design sense. The principle that legal personhood is a prerequisite for IP rights runs across all of these frameworks.

Thaler v Comptroller-General of Patents (United Kingdom Supreme Court, 2023)

The UK Supreme Court reached the same conclusion in Thaler v Comptroller-General of Patents, Designs and Trade Marks, decided in 2023.[16] Again, Thaler sought to list DABUS as the inventor of two patent applications filed in the United Kingdom. The Supreme Court, in a unanimous decision, held that the Patents Act 1977 requires an inventor to be a person, and that a machine cannot satisfy this requirement. The court also rejected the argument that Thaler himself could be treated as the inventor on the basis that he owned the machine — a distinction that is important in the AI fashion context, where brands or developers might seek to claim ownership through similar logic.

The UKSC’s judgment is significant not only for its outcome but for its reasoning. The court acknowledged that the law in this area may need to evolve, but held that such evolution must come through legislative reform, not judicial creativity. This position is consistent with the broader international trend: courts are reluctant to stretch existing IP frameworks to accommodate AI-generated outputs, and the task of reform is being left to legislatures and international bodies.

6. Hermès International v Mason Rothschild (United States District Court, SDNY, 2023)

While not an AI authorship case in the strict sense, Hermès International v Mason Rothschild is deeply instructive for the broader question of IP protection in digital and technologically novel creative contexts.[17] In this case, the artist Mason Rothschild created and sold a series of NFTs depicting fur-covered Birkin bags — the iconic handbag of the Hermès brand — under the name “MetaBirkins.” Hermès sued for trademark infringement, and the jury found in Hermès’ favour, awarding damages and confirming that trademark protection extends to unauthorised digital and AI-adjacent creative works that trade on an established brand’s identity.

The case is relevant to AI-generated fashion design in two respects. First, it confirms that luxury brand IP rights are enforceable even in novel digital contexts — meaning that an AI-generated design that replicates or closely evokes the trade dress of an established brand will attract liability, regardless of whether the infringement was human or machine-generated. Second, it illustrates the inadequacy of existing frameworks: the case was ultimately decided on trademark grounds because copyright and design law offered no clean solution to the novel circumstances. This is precisely the kind of workaround that characterises IP law in the AI era — courts reaching for the closest available tool rather than applying a framework designed for the situation

7. Critical Analysis and Findings

The foregoing analysis reveals three critical findings that together paint a picture of a legal framework under significant strain.

First, and most fundamentally, the human authorship requirement embedded in international IP law is not a peripheral technicality — it is the conceptual foundation on which the entire edifice rests. The Berne Convention’s originality standard, the TRIPS Agreement’s copyright provisions, and India’s Copyright Act all speak to the creativity of a human mind.[18] This foundation was appropriate and uncontroversial for most of the twentieth century, but it is now a source of genuine legal uncertainty. The fashion industry cannot afford to operate in that uncertainty: brands need to know that their AI-generated collections are protectable before they invest in the technology.

Second, the fragmentation of national approaches is itself a serious problem. The United States, United Kingdom, and Indian legal systems will likely reach different conclusions about the protectability and ownership of AI-generated fashion designs, in the absence of a binding international standard. Fashion is a global industry — a collection designed by an AI in one jurisdiction, manufactured in a second, and sold in a third will face different legal treatment at every stage. This jurisdictional uncertainty undermines the legal certainty that IP protection is supposed to provide.

Third, the WIPO consultation process, while valuable, has not produced a binding outcome. The three policy options identified by WIPO — ownership by the developer, by the user, or public domain — each have merit, but the absence of consensus means that no option has been adopted. It is submitted that the most commercially workable solution, and the one most consistent with the purposes of IP law, would be to vest ownership in the entity that has made the most significant creative and commercial investment in the AI-generated output — typically the fashion brand or design house that commissioned and deployed the system. This would preserve the incentive function of IP law while providing a clear and enforceable rule.

The EU AI Act 2024 represents a step in a related direction, insofar as it imposes transparency obligations that will require AI-generated creative works to be identified as such.[19] However, it does not resolve the ownership question, and its geographic scope is limited. What is needed is a new WIPO instrument — whether a treaty, a model law, or a set of agreed principles — that establishes minimum standards for the protection of AI-generated creative works, including fashion designs, at the international level.

8. Conclusion

Artificial intelligence is transforming the fashion industry at a pace that the law has simply not kept up with. The central argument of this article is that existing international IP frameworks — rooted in the Berne Convention, the TRIPS Agreement, and the Paris Convention — are structurally ill-suited to address the authorship and ownership questions raised by AI-generated fashion designs.[20] The leading cases from the United States and United Kingdom confirm that courts will not extend IP rights to machines, but they offer no solution to the question of who, among the humans involved, should hold those rights.

India’s Copyright Act 1957 offers a partial answer through its computer-generated works provision, but this was not designed for fully autonomous AI creativity and cannot bear the full weight of the problem. The EU AI Act introduces transparency obligations but does not resolve ownership. WIPO has identified the issues but has not yet produced binding standards.

The fashion industry deserves legal clarity. Designers, brands, and investors need to know that AI-generated creative work can be protected and monetised within a coherent legal framework. This article recommends that WIPO convene an urgent diplomatic process to negotiate a new instrument on AI and IP — one that establishes clear minimum standards for the protection of AI-generated fashion designs, assigns ownership on the basis of creative and commercial investment, and provides enforcement mechanisms that function across jurisdictions. Until that reform is achieved, the legal status of AI-generated fashion designs will remain, at best, uncertain — and uncertainty is a luxury the industry cannot afford.

Bibliography

Table of Cases

Christian Louboutin SAS v Abubaker and Ors CS(COMM) 714/2016 (Delhi High Court, 2018)

Gucci America Inc v Guess?, Inc 868 F Supp 2d 207 (SDNY, 2012)

Hermès International v Mason Rothschild No 22-cv-384 (SDNY, 2023)

Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49

Thaler v Vidal 43 F.4th 1207 (Fed Cir, 2022)

Table of Legislation

Berne Convention for the Protection of Literary and Artistic Works (Berne, 9 September 1886)

Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994)

Paris Convention for the Protection of Industrial Property (Paris, 20 March 1883)

Copyright Act 1957 (India)

Designs Act 2000 (India)

Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 (Artificial Intelligence Act)

Books and Journal Articles

Ginsburg J, ‘People Not Machines: Authorship and What it Means in the Berne Convention’ (2018) 49(1) International Review of Intellectual Property and Competition Law 131

Guadamuz A, ‘Artificial Intelligence and Copyright’ (2017) WIPO Magazine, October 2017

Samuelson P, ‘Allocating Ownership Rights in Computer-Generated Works’ (1986) 47 University of Pittsburgh Law Review 1185

Scafidi S, ‘Intellectual Property and Fashion Design’ (2006) 1(1) Intellectual Property Law Review 115

World Intellectual Property Organization, ‘Conversation on Intellectual Property and Artificial Intelligence’ (WIPO, 2020)

World Intellectual Property Organization, ‘WIPO Technology Trends 2019: Artificial Intelligence’ (WIPO, 2019)

[1] Berne Convention for the Protection of Literary and Artistic Works (Berne, 9 September 1886) art 2; Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994) art 9(1).

[2] Copyright Act 1957 (India), s 2(d).

[3] Berne Convention for the Protection of Literary and Artistic Works (Berne, 9 September 1886) art 2(1).

[4] Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994) art 9(1).

[5] Copyright Act 1957 (India), s 2(d)(vi).

[6] Designs Act 2000 (India), s 2(d).

[7] World Intellectual Property Organization, ‘Conversation on Intellectual Property (IP) and Artificial Intelligence (AI)’ (WIPO, 2020)

[8] Berne Convention for the Protection of Literary and Artistic Works (Berne, 9 September 1886) art 2.

[9] Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994) art 9(1).

[10] World Intellectual Property Organization, ‘Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence’ (WIPO, 2020)

[11] Copyright Act 1957 (India), s 2(d)(vi).

[12] Designs Act 2000 (India), s 2(d).

[13] Paris Convention for the Protection of Industrial Property (Paris, 20 March 1883) art 6bis.

[14] Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) [2024] OJ 2024/1689

[15] Thaler v Vidal 43 F.4th 1207 (Fed Cir, 2022).

[16] Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49.

[17] Hermès International v Mason Rothschild No 22-cv-384 (SDNY, 2023).

[18] Berne Convention for the Protection of Literary and Artistic Works (Berne, 9 September 1886) art 2(1); Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994) art 9(1); Copyright Act 1957 (India), s 13.

[19]  Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 (Artificial Intelligence Act) [2024] OJ 2024/1689, art 50.

[20] Berne Convention for the Protection of Literary and Artistic Works (Berne, 9 September 1886); Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994); Paris Convention for the Protection of Industrial Property (Paris, 20 March 1883).