Authored By: Gurveen Bains
University of Leicester
Abstract
Artificial intelligence (AI) is increasingly transforming the fashion industry through the use of AI-generated fashion models, digital avatars, and virtual influencers. While these technologies offer significant commercial advantages for fashion brands, they raise important legal questions concerning the protection of human identity. This article examines whether Canadian law adequately protects human models from the unauthorized commercial exploitation of their image, likeness, and reputation through AI-generated identities. It analyzes three key legal frameworks: personality rights, privacy law, and intellectual property law. Through an examination of Canadian legal principles and the decisions in Krouse v Chrysler Canada Ltd and Athans v Canadian Adventure Camps Ltd, the article argues that existing protections provide an important foundation but remain insufficient to address the unique challenges posed by generative AI. As a result, the article concludes that legislative reform is necessary to provide greater legal certainty and stronger protection for human identity within an increasingly digital fashion industry.
Introduction
The fashion industry has historically relied upon human identity as a major component of marketing and brand development. From runway shows to advertising campaigns, many brands have used human models to embody brand values and to influence consumer behaviour. However, recent changes in AI have begun to transform this traditional relationship between fashion, identity, and commerce. Fashion brands such as Levi Strauss & Co., Balmain, Gucci, and Valentino have increasingly experimented with AI-generated models, digital avatars, and virtual influencers as part of their marketing strategies. Virtual influencers such as Lil Miquela have amassed millions of followers and secured collaborations with major luxury brands, demonstrating the growing commercial value of digitally created personalities and highlighting the increasing integration of AI technologies within the fashion industry.[1]
AI-generated fashion models and virtual influencers are computer-generated individuals created using AI, computer-generated imagery (CGI), and digital modelling technologies to simulate human appearance and behaviour for marketing purposes. Designed to resemble real individuals, they can interact with consumers on social media, promote products, and influence purchasing decisions like traditional human influencers.[2] Unlike human models, virtual influencers can be instantly modified and allow brands to exercise complete control over their appearance, personality, and online behaviour, ensuring that marketing campaigns remain consistent with corporate objectives and brand identity.[3] As a result, many fashion brands are increasingly adopting AI-generated models as a strategic marketing tool to improve efficiency, maintain brand control, and strengthen consumer engagement.
Despite these benefits, the growing use of AI-generated models raises important legal questions. Many AI systems are developed using large volumes of existing digital content, while some digital models are designed to replicate or imitate characteristics associated with real individuals.[4] These developments challenge existing legal frameworks governing copyright, privacy, and personality rights. Canadian law has historically been developed to protect human creators and individuals from unauthorized exploitation of their work or identity, yet it remains unclear whether these protections are sufficient in the context of AI-generated fashion models.[5]
This article examines whether Canadian law adequately protects human models in the age of AI. It argues that although existing copyright, privacy, and personality rights frameworks provide some protection, significant legal gaps remain. As AI technologies continue to evolve, legislative and judicial reform may be necessary to ensure that human creators and models are adequately protected while still allowing innovation within the fashion industry.
Background and Conceptual Framework
AI has become an increasingly significant feature of the modern fashion industry, influencing marketing, design, consumer engagement, and brand development. Among the most notable developments is the emergence of AI-generated fashion models and virtual influencers. AI-generated fashion models are computer-generated individuals created using artificial intelligence, machine learning, and computer-generated imagery (CGI) technologies to simulate human appearance and behaviour. Similarly, virtual influencers are digital personalities designed to interact with consumers through social media platforms, build online audiences, and promote products in a manner comparable to traditional influencers.[6]
The growing use of these technologies is driven by several commercial advantages. AI-generated models provide fashion brands with greater control over a model’s appearance, behaviour, and public image while reducing many of the costs associated with traditional modelling and influencer campaigns. They can also be modified rapidly to reflect changing trends, marketing objectives, and consumer preferences. Furthermore, virtual influencers can strengthen consumer engagement and increase brand recognition through continuous interaction with online audiences.[7]
The use of AI-generated models raises several legal issues that fall within existing Canadian legal frameworks. The first concerns copyright law, which protects original literary, artistic, and musical works under the Copyright Act. Copyright disputes may arise where copyrighted photographs or other creative works are used in the development of AI systems without authorization.[8] The second issue concerns privacy rights, which protect individuals against certain unauthorized uses of their personal information.[9] Finally, personality rights protect individuals from the unauthorized commercial exploitation of their identity, image, or likeness.[10] Although personality rights have been recognized through both common law and provincial privacy legislation, their application to AI-generated models remains uncertain.
These legal concepts provide the foundation for assessing whether Canada’s existing legal framework is capable of addressing the challenges posed by AI-generated fashion models and digital influencers.
Legal Analysis
The emergence of AI-generated fashion models and virtual influencers presents a challenge to legal frameworks that were developed in an era where commercial exploitation generally involved the direct use of a person’s image or likeness. While Canadian law provides certain protections through personality rights, privacy legislation, and intellectual property law, the application of these doctrines to AI-generated identities remains uncertain.[11] The main issue is not whether individuals possess legal rights over their identity, but whether existing legal frameworks are capable of protecting those rights when identity can be replicated, altered, and commercialized through artificial intelligence.
The primary legal protection available in Canada is the common law doctrine of appropriation of personality. This doctrine recognizes that an individual’s image, name, likeness, or reputation may possess independent commercial value and should not be used for commercial purposes without consent.[12] In the traditional fashion industry, this protection is relatively straightforward. If a company uses a model’s photograph in an advertising campaign without authorization, the model may pursue legal remedies. However, AI-generated fashion models complicate this analysis because they often do not directly reproduce an existing photograph. Instead, AI can generate entirely new images that resemble a real person or replicate characteristics associated with a particular individual. As a result, it becomes difficult to determine whether a person’s identity has been appropriated when no exact image has been copied.
This uncertainty exposes a significant limitation within Canadian personality rights law. The doctrine was developed to address conventional forms of commercial exploitation rather than digital replicas generated by artificial intelligence.[13] A fashion brand may argue that an AI-generated model is an original creation because no photograph was copied directly. Conversely, the individual whose appearance has been replicated may argue that the commercial value of their identity has nevertheless been exploited. Existing legal principles provide limited guidance on how courts should resolve this conflict. Consequently, the effectiveness of personality rights may depend upon judicial interpretation rather than clear legislative standards.
Privacy law provides another potential source of protection. Under the Personal Information Protection and Electronic Documents Act (PIPEDA), organizations are generally required to obtain meaningful consent before collecting, using, or disclosing personal information.[14] This framework becomes particularly relevant where AI systems are trained using photographs, facial images, or biometric data. However, privacy law faces practical limitations when applied to generative AI. Many AI systems are trained using vast datasets compiled from publicly available online content. Individuals may have consented to sharing photographs on social media platforms without anticipating that such images could later be used to train AI systems capable of generating digital replicas.[15] This raises important questions regarding whether existing consent mechanisms are sufficiently informed and meaningful in the context of AI development.
At the same time, privacy legislation focuses primarily on the collection and use of personal information rather than the commercial exploitation of identity itself.[16] Even if an AI-generated model resembles a real individual, a privacy claim may be difficult to establish where the final output does not contain identifiable personal information as traditionally understood by privacy law. As a result, privacy protections may fail to address situations in which an individual’s likeness is imitated without necessarily revealing private information.
Intellectual property law offers only limited assistance. Copyright law protects original artistic works, including photographs and digital images, but generally does not protect a person’s identity, appearance, or facial characteristics. Consequently, a photographer may possess copyright in a fashion photograph, while the model depicted in the image possesses no copyright interest in their own appearance.[17] This distinction reflects the traditional purpose of copyright law, which is to protect creative expression rather than personality. However, the increasing ability of AI systems to replicate human characteristics demonstrates a growing disconnect between existing intellectual property frameworks and modern technological realities.
Supporters of AI-generated fashion models may argue that these technologies promote innovation, increase efficiency, and provide brands with greater creative flexibility.[18] Furthermore, not every AI-generated model is based on a specific individual, and excessive regulation could obstruct technological development within the fashion industry. However, the absence of clear legal standards creates uncertainty for both individuals and businesses. Without a coherent framework governing AI-generated identities, human models may struggle to protect the commercial value of their likeness, while fashion brands may face uncertainty regarding the legality of their marketing practices.
Fundamentally, Canadian law provides important but incomplete protections against the unauthorized exploitation of identity. Personality rights, privacy legislation, and intellectual property law each address different aspects of the issue, yet none were designed with generative AI in mind. The result is a fragmented legal framework that leaves significant questions unanswered and highlights the need for greater legal clarity regarding the use of AI-generated fashion models and virtual influencers.
Case Law Discussion
Krouse v Chrysler Canada Ltd (Ontario Court of Appeal, 1973)
Krouse v Chrysler Canada Ltd remains one of the most influential Canadian decisions concerning the commercial value of personal identity and the foundation of personality rights. The plaintiff was a professional football player whose image appeared in a Chrysler advertising campaign without his consent. Although his face was not clearly identifiable, the advertisement associated him with the promotion of Chrysler’s products and sought to capitalize on his public profile. Krouse argued that the unauthorized use of his likeness amounted to an appropriation of his personality for commercial gain.
The legal issue was whether an individual possesses a legally protected commercial interest in their identity. The Ontario Court of Appeal recognized that a person’s image and reputation may have independent economic value and that the unauthorized commercial exploitation of that value could give rise to legal liability. The decision is widely regarded as establishing the modern Canadian doctrine of appropriation of personality.[19]
For the fashion industry, the significance of Krouse extends beyond traditional advertising. Fashion models derive substantial economic value from their image, reputation, and public identity. Their likeness is often a key component of a brand’s marketing strategy and can directly influence consumer behaviour. The recognition in Krouse that identity itself may constitute a commercially valuable asset, therefore provides an important legal foundation for protecting fashion models against unauthorized commercial exploitation.
However, the case also highlights the limitations of existing Canadian law when applied to AI. The dispute involved the direct use of an individual’s likeness in a conventional advertisement. AI-generated fashion models present a more complex scenario because brands may create digital replicas that resemble real individuals without reproducing a specific photograph. While Krouse confirms that identity has commercial value, it offers limited guidance on whether AI-generated likenesses amount to an appropriation of personality. Consequently, the decision establishes an important principle while simultaneously revealing the uncertainty surrounding its application to emerging technologies.
Athans v Canadian Adventure Camps Ltd (Ontario High Court of Justice, 1977)
In Athans v Canadian Adventure Camps Ltd, the defendant used a drawing depicting George Athans, a well-known Canadian water skier, performing a distinctive water-skiing manoeuvre in promotional material for its summer camp without obtaining his consent. Although the advertisement did not directly reproduce a photograph of Athans, it was clearly intended to evoke his identity and reputation for commercial purposes.
The legal issue was whether the unauthorized commercial use of a person’s identity constituted a legally actionable wrong, even where an exact image had not been reproduced. The court recognized that Athans had developed a commercially valuable public identity through his sporting achievements and held that the unauthorized use of that identity for advertising purposes could amount to appropriation of personality. The decision reinforced the principle that an individual’s identity may possess independent economic value deserving legal protection.[20]
The significance of Athans lies in its broader approach to protecting identity. Unlike traditional cases involving the direct reproduction of a photograph, the defendant used a representation designed to remind consumers of Athans rather than an exact image of him. This distinction makes the decision particularly relevant to AI-generated fashion models and virtual influencers. Generative AI systems often create digital replicas or synthetic identities that imitate a person’s appearance, style, or public persona without directly copying an existing photograph. In many respects, the legal concerns raised by AI-generated models are closer to the circumstances in Athans than those in Krouse.
Altogether, Krouse and Athans demonstrate that Canadian courts have long recognized the commercial value of identity and have been willing to protect individuals from unauthorized commercial exploitation. However, both decisions were issued decades before the emergence of generative AI. While they provide a useful foundation for addressing disputes involving AI-generated fashion models and virtual influencers, neither case offers a definitive answer to whether digital replicas constitute an appropriation of personality. This uncertainty supports the central argument of this article: although Canadian law recognizes the commercial value of identity, existing legal frameworks may be ill-equipped to address the challenges posed by AI-generated identities in the modern fashion industry.
Critical Analysis and Findings
The main weakness in Canadian law is not the absence of protection, but the fragmented nature of that protection. Personality rights, privacy law, and intellectual property law each address part of the problem, yet none provides a complete response to AI-generated fashion models and digital replicas. Personality rights protect commercial identity, but the doctrine remains largely common law-based and fact-specific. Privacy law regulates the use of personal information, but it does not always address the broader commercial exploitation of likeness. Copyright law protects photographs and artistic works, but not the human identity depicted within them. This creates a legal gap where an AI-generated model may imitate a person’s appearance or public persona without clearly violating any single legal framework.
Canadian courts have recognized that a person’s identity can have commercial value, especially in cases such as Krouse and Athans. However, these cases involved traditional forms of advertising and did not deal with AI. Today, AI can create digital versions of people or imitate their public image without directly copying their actual photograph. This makes it difficult for existing laws to keep up and creates a challenge between protecting individuals and allowing new technology to develop.
The current framework benefits fashion brands and AI developers by allowing experimentation with digital marketing tools in a relatively uncertain regulatory environment. However, human models are disadvantaged because their image, reputation, and personal brand may be commercially displaced without clear consent, and they may not receive payment or protection when their likeness is used. This is a major concern in the fashion industry because a model’s appearance and identity are important parts of their career and income.
Canadian law is therefore in need of reform. A more effective framework should recognize AI-generated replicas and digital likenesses as distinct legal concerns. Reform should require clear consent before a person’s likeness is used to create or promote an AI-generated model, provide remedies for unauthorized digital replication, and clarify the relationship between personality rights, privacy, and intellectual property law. Without such reform, Canadian law risks protecting traditional forms of identity misuse while leaving modern AI-driven exploitation insufficiently regulated.
Conclusion
The increasing use of AI-generated fashion models and virtual influencers has exposed significant challenges within existing legal frameworks governing identity, ownership, and commercial exploitation in the fashion industry. This article has demonstrated that while Canadian law provides protection through personality rights, privacy legislation, and intellectual property frameworks, these protections were developed before the emergence of generative AI and do not fully address the realities of digital replication. The analysis of Krouse and Athans confirms that Canadian courts recognize the commercial value of identity and are willing to protect individuals from unauthorized commercial exploitation. However, neither existing case law nor current legislation provides clear guidance on the legal status of AI-generated replicas and synthetic identities. As AI technologies continue to evolve and become more integrated into fashion marketing, greater legal certainty will be required. Future reform should focus on clarifying the protection of digital likenesses and ensuring that innovation can develop alongside meaningful protections for human identity and commercial personality.
Reference(S):
Table of Cases
Athans v Canadian Adventure Camps Ltd et al (1977)
Krouse v Chrysler Canada Ltd (1973) 1 OR (2d) 225 (Ont CA)
Table of Legislation
Copyright Act, RSC 1985, c C-42
Personal Information Protection and Electronic Documents Act, SC 2000, c 5
Bibliography
Government of Canada, ‘Consultation Paper: Consultation on Copyright in the Age of Generative Artificial Intelligence’ (Government of Canada, 5 December 2024) https://ised-isde.canada.ca/site/strategic-policy-sector/en/marketplace-framework-policy/consultation-paper-consultation-copyright-age-generative-artificial-intelligence
Jones Hannah, ‘AI Mimicking Identity: Should Canadian Copyright Law Protect Personality Rights’ (Western Law, 26 January 2026) https://oba.org/faculty-of-law-university-of-western-ontario-jd-candidate-class-of-2027/
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Oosterom Evrim Buyukaslan, Baytar Fatma and Maher Mona, ‘Fashion Marketing with Virtual Humans as Influencers’ (April 2023)
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The Business of Fashion and McKinsey & Company, The State of Fashion 2025 (The Business of Fashion and McKinsey & Company 2025)
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[1] Jessica Roy, ‘They’re Famous. They’re Everywhere. And They’re Fake.’ (New York Times, 3 September 2025) <https://www.nytimes.com/2025/09/03/style/ai-influencers-lil-miquela-mia-zelu.html>.
[2] Evrim Buyukaslan Oosterom, Fatma Baytar and Mona Maher, ‘Fashion Marketing with Virtual Humans as Influencers’ (April 2023) 164-165.
[3] Ibid 171-172.
[4] Hannah Jones, ‘AI Mimicking Identity: Should Canadian Copyright Law Protect Personality Rights’ (Western Law, 26 January 2026) <https://oba.org/faculty-of-law-university-of-western-ontario-jd-candidate-class-of-2027/>.
[5] Krouse v Chrysler Canada Ltd (1973) 1 OR (2d) 225 (Ont CA).
[6] Oosterom, Baytar and Maher (n 2).
[7] Ibid.
[8] Government of Canada, ‘Consultation Paper: Consultation on Copyright in the Age of Generative Artificial Intelligence’ (Government of Canada, 5 December 2024) <https://ised-isde.canada.ca/site/strategic-policy-sector/en/marketplace-framework-policy/consultation-paper-consultation-copyright-age-generative-artificial-intelligence>.
[9] Personal Information Protection and Electronic Documents Act, SC 2000, c 5.
[10] Krouse v Chrysler Canada Ltd (n 5).
[11] World Intellectual Property Organization, ‘Patent Landscape Report: Generative Artificial Intelligence’ (WIPO, 2024) <https://tind.wipo.int/record/49740?v=pdf>.
[12] Krouse v Chrysler Canada Ltd (n 5).
[13] Ibid.
[14] PIPEDA.
[15] Office of the Privacy Commissioner of Canada, ‘Joint Investigation of Clearview AI, Inc. by the Office of the Privacy Commissioner of Canada, the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner for British Columbia, and the Information Privacy Commissioner of Alberta’ (2 February 2021)<https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/investigations-into-businesses/2021/pipeda-2021-001/>.
[16] PIPEDA.
[17] Copyright Act, RSC 1985, c C-42.
[18] The Business of Fashion and McKinsey & Company, The State of Fashion 2025.
[19] Krouse v Chrysler Canada Ltd (n 5).
[20] Athans v Canadian Adventure Camps Ltd et al (1977).
