Authored By: Mili Aggarwal
Gitarattan international Business School, GGSIPU
Abstract
The advent of AI in the fashion industry has revolutionized traditional practices of design making, giving rise to novel garments, patterns, and other fashion designs using limited human effort. Whereas the use of AI in fashion holds enormous potential for creativity and growth, such designs create a plethora of issues with respect to copyright laws and design protection. The existing system of intellectual property laws is based on the premise that the creations of man come out of the mind of a human being; the question then arises as to what would be its implication in cases where designs have been created independently by autonomous AI software. This paper attempts to highlight various legal issues with respect to fashion designs made by AI technology through the prism of copyright and design laws and compares and contrasts them with those prevailing in the United States, the United Kingdom, and the European Union.
Keywords
Artificial Intelligence; Fashion Law; Intellectual Property; Copyright Law; AI-Generated Designs; Authorship; Design Protection
1. Introduction
Human ingenuity, imagination, and creativity have always been key features of the fashion industry. The significance of fashion has always depended on the originality and ability of human creators, be it couture labels or individual designers. Nevertheless, recent developments in artificial intelligence (AI) technologies have started challenging the traditional concept of creativity. Contemporary machine learning programs are able to design, develop patterns, combine colours, and produce illustrations for clothes that look similar to or even more advanced than human-made objects.
Big fashion companies and technology firms have started using intelligent software that allows predicting consumers’ tastes, coming up with design ideas, and streamlining production processes. With the help of generative design tools, thousands of fashion ideas could be generated in seconds, thus expanding creative boundaries that usually take many resources to overcome.[1] Although this trend brings a lot of business benefits, it has also led to the emergence of complicated legal issues regarding intellectual property rights related to machine-generated designs.
The field of intellectual property law has always been based on the assumption that creativity emanates from the human mind. Protection of copyrights, design patents, and all the other means of intellectual property are based on the premise of human creativity.[2] In light of the emergence of machine-generated fashion designs, intellectual property law is challenged by several pertinent questions, including whether AI-generated designs are eligible for protection under intellectual property law, who will be considered their legal owners, and whether the current intellectual property laws are enough in the age of machine-made art.
In this paper, I aim to critically analyze the challenges brought about by AI-generated fashion designs. Using an analysis of relevant intellectual property law, relevant case laws, and international legal trends, I plan to examine whether the current legal framework is sufficient to address the emerging issue of machine-generated creativity and what possible solutions exist in the future.
2. Background and Conceptual Framework
Artificial Intelligence can be defined as computer programs that are able to perform activities normally done by humans, which include the capabilities of learning, reasoning, solving problems, and creating. In the fashion sector, the development of artificial intelligence has moved on from simple analytical capabilities to engaging in the actual creative process. Today’s generative AI uses vast databases comprised of fashion images, sketches, fabrics, runway shows, and consumer preferences to produce brand-new creations.[3]
The differences between AI-assisted fashion designs and AI-created fashion designs should be established. In the former case, there is substantial human participation in the process, with designers using AI tools to assist them in their creative work.[4] In this scenario, human creativity plays the key role, whereas AI acts only as an aid. In contrast, in the latter instance, the AI program does most of the creative job on its own, without any human input other than prompts or output selection.
It is significant from the legal perspective because the traditional notion of intellectual property protection was based on the requirement for human creativity. In copyright, for example, original human creations were subject to protection as the works of authorship. In design law, original visual aspects emerging as a result of human creativity were subject to protection. Now, the issue is complicated by the fact that the creativity takes place as a result of algorithms’ actions, not those of humans.
The importance of resolving these questions becomes evident in view of the rising role of artificial intelligence in the fashion industry. In particular, luxury labels, fashion retail companies, and tech firms increasingly deploy AI systems capable of creating clothing lines, digital fashion products, and virtual clothes. This means that now, the concept of AI-generated fashion goes beyond theoretical speculation.
In addition to this, however, many laws that govern intellectual property rights do not cover the issue of whether AI-generated creativity falls within the ambit of these laws. This is because many statutes addressing such issues have been enacted prior to the introduction of modern-day AI systems used to generate creative output, thereby failing to offer sufficient guidance on questions of authorship and ownership of such works.
An understanding of the interface between AI-generated creativity and intellectual property law will thus go a long way toward securing both legality and innovation within the current state of fashion.
3. Legal Analysis
3.1 Traditional Concept of Authorship in Intellectual Property Law
The idea of authorship forms the basis of intellectual property law. Traditionally, copyright law has been justified in terms of the idea that creative works come from human intellect, labor, skill, and judgment. The principles upon which the intellectual property system of laws was based have strong ties to individualism and the theory of creation, personality, and incentive.
Generally, intellectual property laws globally rely implicitly on the existence of the human author. Ideas such as originality, creativity, intentionality, and moral rights have always been connected directly to human behavior.[5] As a result, the legal system developed on the assumption that an author is a person who is capable of having legal rights and legal duties.
However, the appearance of AI creates problems within this context. Traditional software that helps human creators cannot be compared to advanced AI technologies. These systems are capable of creating new designs, patterns, and other creative products on the basis of analysis of huge amounts of data. The design is often created using an algorithmic process that is carried out independently of any human creativity. The implication that arises is, “Can a creation made by a non-human agent meet the legal requirements developed for human creations?”
It cannot be said definitively since the issue of intellectual property law had been centered on human creation. With increasing advances in the field of artificial intelligence, machines are able to create commercial value within fashion designs.
3.2 Copyright Challenges in AI-Generated Fashion Designs
The copyright laws give protection to original works of art such as sketches, illustrations, patterns on textiles, prints, etc., used within the fashion industry. One critical question raised in relation to artificial intelligence and fashion designs is whether they meet the standard of originality and whether they have authors who can claim ownership of the designs.
In accordance with existing copyright laws, a work is considered original if there is a direct connection between the creation and the efforts of the intellectual property owner of the work. The problem is how AI fashion designs are created since, in such cases, the input provided by the user may only entail providing prompts or choosing from the results produced. There are concerns about the sufficiency of human creativity necessary for copyright protection in such designs.
This problem gets even more complicated in instances where human input varies. In such cases, human designers make elaborate instructions and extensive modifications, which mean that the final result involves significant creativity. In this context, one can assume that the product created through such technologies would be regarded as an expansion of the ability to create something by humans using technology. In another scenario, the process of creating fashion through AI is entirely independent and does not rely on any human efforts, thus complicating the identification of a person who is the copyright holder of a particular design.
The next challenge concerns the type of training data used in AI. Numerous models are based on extensive datasets containing various pieces of art, photographs, fashion catalogs, etc.[6] As a result, there is a chance that AI-generated products might be quite similar to already copyrighted products included in such datasets, raising issues of copyright infringement and unlicensed reproduction. In this case, fashion houses may have legal problems both asserting their copyrights over the product and defending themselves from accusations of infringement.
These problems prove that traditional copyright cannot cope with technology able to generate creative content without any human contribution.
3.3 Ownership Dilemmas: Designer, User, Developer or AI?
While intellectual property protection might be provided to designs generated by AI, identifying ownership will pose a different problem that is equally important. There are many parties involved in developing the design that is generated by AI, and the identification of ownership is likely to become very controversial.
Firstly, one can suggest that the individual who gives commands and initiates a generation of a new design is regarded as its owner.[7] Proponents of this viewpoint emphasize that an owner gives the initial input, makes decisions regarding what needs to be done and exercises judgment in choosing the end result. In other words, the user takes on the same role that an old-fashioned designer assumes when initiating creativity.
Secondly, owners of AI systems should be recognized as owners of the design because without all the sophisticated algorithms, datasets, and computational technology developed by developers, there is no possibility of obtaining the output from the machine.
Another even more contentious solution that could be considered is the acknowledgment of AI as being the actual author and/or inventor of these works.[8] This has been a highly contentious issue from an academic standpoint, yet it still presents a number of serious challenges. Firstly, AI does not possess legal personality and therefore cannot be the owner of any property, cannot sign agreements, and cannot make any claims.
Lack of any consensus within these differing theories shows why there is an urgent need for legislation.
3.4 Protection under the Indian Copyright Act, 1957
While there is no explicit reference to AI-generated creations in the Indian Copyright Act, 1957, some sections give indications about the stance on this aspect of copyright under Indian laws.
The section 2(d)(vi) of the Act provides that where the author of a computer-generated work is not known, then in such a situation the author shall be “the person who causes the work to be created.”[9] The reason why this provision has become relevant for the purposes of considering AI-generated creations is due to the fact that the provision implies recognition of situations where works may be generated by technological tools.
However, the provision was adopted well before the advent of AI tools and its primary intention was to cover computer-assisted works. Therefore, the uncertainty arises concerning the interpretation of the term “the person who causes the work to be created.”
In particular, it is unclear whether it applies to the creator of the software that creates the works, the person using the program, or any other participants of the process.
Indian copyright jurisprudence relies on the concept of human effort as an important criterion for assessing originality.[10] Hence, this factor is likely to create difficulties for copyright protection of AI-generated fashion designs.
3.5 Protection under the Designs Act, 2000
Aside from copyright law, fashion designs may be protected by the Designs Act, 2000.[11] The Designs Act grants legal protection for the visible aspects, form, appearance, shape, configuration, pattern, ornamentation, or decoration of articles. Given that fashion items generate their commercial value through their visual features, it is essential for fashion products to have legal protection in the form of design law.
While the Designs Act considers artistic works that satisfy certain statutory criteria, it does not focus much on artistic authorship as does copyright law. As a result, the fashion products created using AI technology may qualify for design protection if the statutory requirements are met.
The Designs Act does not provide any answer to the question whether the author of AI-generated art qualifies for such legal protection. Just like copyright law, the determination of who is eligible for the registration of the work can be difficult.
3.6 Comparative International Approaches
Various countries throughout the world have employed varying policies regarding the issue of AI-generated creativity as a result of a lack of a universal consensus in this area.
The UK follows a rather accommodating policy under the Copyright, Designs and Patents Act of 1988. This legislation allows for computer-generated works to be recognized and considers the person making the necessary arrangements for such creations as the author. Although this provision could resolve the problem of establishing authorship for works created by AI, there is some uncertainty regarding its applicability to advanced systems.[12]
The U.S., on the other hand, follows a much stricter policy. According to the U.S. Copyright Office, works that fail to demonstrate any human contribution whatsoever would not be considered copyrightable at all.
Like the EU, the importance of the personal intellectual creation by humans is stressed in the European copyright law. In Europe, originality is usually associated with the personal intellectual creation of the author, which makes it quite hard for autonomous AI works to be recognized.[13]
In sum, the above examples show that the legal systems around the world face a similar problem. Although there are slight differences in statutory wording and court interpretations, one thing is clear: current intellectual property laws are simply too human-oriented.
4. Case Law Discussion
Authorship issues related to non-human creations have garnered increasing attention from courts and government authorities in many jurisdictions. Although there are no significant decisions by Indian courts on artificial intelligence-created fashion designs, there are other noteworthy judgments that shed light on the status of machine-made creations.
In one of the early decisions involving non-human authorship, the “Monkey Selfie Case” of Naruto v. Slater (2018)[14] was decided. In this case, the issue arose when a macaque monkey triggered a camera and captured a series of images. The United States Court of Appeals for the Ninth Circuit determined that animals are not eligible to hold copyright according to present laws.
While this judgment did not involve AI, it clearly indicates that copyright usually implies a human author. This ruling is important since it shows the judiciary’s hesitance to acknowledge non-human creators eligible for copyright protection.
More directly concerned with AI, the case of Thaler v. Perlmutter (2023) was decided. This dispute involved Dr. Stephen Thaler, who claimed copyright protection for an artwork independently created through the use of an AI called the “Creativity Machine.” Registration was denied, and the ruling stood as confirmation that intellectual property rights do not apply to works produced without human input.[15]
In the administrative determination on Zarya of the Dawn, the U.S. Copyright Office recognized the copyright only for that part of the creation involving human creative input and denied copyright protection to any images created using AI. This demonstrates the increasing trend towards adopting a hybrid strategy that relies on the degree of human involvement in the creative process.[16]
This raises some interesting possibilities and challenges for the fashion industry. A creation by AI that has been conceived entirely by the algorithm could struggle to find intellectual property protection in existing legal frameworks. On the other hand, if the designer applies significant creative input in the form of prompt engineering, choice, modification, and refinement of AI-generated results, there could be more room for protection.The emerging jurisprudence therefore suggests that future protection may depend less on the use of AI itself and more on the degree of human creativity involved in the final design.
5. Critical Analysis and Findings
The growing application of AI in fashion design presents a clear disparity between advancements in technology and the relevant laws that protect intellectual property. The current legal framework for intellectual property laws does not cover the emergence of technologies in which innovation happens automatically without human intervention.United
However, awarding intellectual property rights to an AI system poses both conceptual and practical challenges since the AI system lacks legal personhood and therefore cannot exercise its own rights. On the other hand, failing to afford any rights to the output of an AI system in the field of fashion design would limit the innovation and creativity within this field.
It would make sense to adopt a more balanced position and provide protection to fashion designs produced using an AI system in cases where there is substantial human involvement in the process through creation, design selection, modification, or supervision of the work being done.
In addition, a statutory clarification becomes very urgent in the circumstances. The uncertainty regarding authorship and copyright laws as far as design and fashion technology go has left many designers, technology experts, and fashion companies confused.
6. Conclusion
In this way, AI technology is changing the fashion industry through the implementation of new approaches to creating fashion designs, challenging our conventional views of creativity and copyright. Although AI-generated designs present a lot of opportunities for both business and art, they also reveal gaps in modern copyright and design law.
Modern regulations are still oriented towards human creativity and have no answer to protecting autonomous computer-generated creations. In this regard, comparing the developments in the USA, the UK, and Europe, we can see that all legal systems of the world struggle with similar problems. Thus, according to the analysis conducted during the research, neither a complete exclusion of autonomous computer-generated inventions from protection nor their absolute inclusion is the best way to solve the problem.
For the future, it should be noted that the development of fashion law will require elaboration of new legal approaches to protect AI-generated inventions, combining innovations in technologies with the fundamental principles of copyright laws.
BIBLIOGRAPHY
Legislation
- Copyright Act 1957.
- Designs Act 2000.
- Trade Marks Act 1999.
- Copyright, Designs and Patents Act 1988 (UK).
- Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994).
Cases
- Christian Louboutin SAS v Abubaker CS (COMM) 344/2018 (Delhi High Court).
- Eastern Book Company v DB Modak (2008) 1 SCC 1.
- Naruto v Slater 888 F 3d 418 (9th Cir 2018).
- Thaler v Perlmutter 687 F Supp 3d 140 (DDC 2023).
Books
- Cornish W, Llewelyn D and Aplin T, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019).
- Gangjee D, Relocating the Law of Geographical Indications (Cambridge University Press 2012).
- Ricketson S and Ginsburg J, International Copyright and Neighbouring Rights (Oxford University Press 2022).
- Scafidi S, Fashion Law: A Guide for Designers, Fashion Executives and Attorneys (Fashion Law Institute 2018).
Reports and Institutional Publications
- European Parliament, Intellectual Property Rights for the Development of Artificial Intelligence Technologies (2020).
- United States Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence (2023).
- United States Copyright Office, Zarya of the Dawn Registration Decision (2023).
- World Intellectual Property Organization, Generative Artificial Intelligence and Intellectual Property (2024).
- World Intellectual Property Organization, WIPO Conversation on Intellectual Property and Artificial Intelligence (2024).
[1] World Intellectual Property Organization (WIPO), ‘WIPO Conversation on Intellectual Property and Artificial Intelligence’ (WIPO 2024).
[2] William Cornish, David Llewelyn and Tanya Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019) 433.
[3] WIPO, Generative Artificial Intelligence and Intellectual Property (2024).
[4] Susan Scafidi, Fashion Law: A Guide for Designers, Fashion Executives and Attorneys (Fashion Law Institute 2018) 42.
[5] William Cornish, David Llewelyn and Tanya Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019) 433.
[6] Copyright Act 1957, s 2(d)(vi).
[7] United States Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence (2023).
[8] Sam Ricketson and Jane Ginsburg, International Copyright and Neighbouring Rights (Oxford University Press 2022) 215.
[9] Copyright Act 1957, s 2(d)(vi).
[10] Eastern Book Company v DB Modak (2008) 1 SCC 1.
[11] Designs Act 2000, s 2(d).
[12] Copyright, Designs and Patents Act 1988 (UK), s 9(3).
[13] European Parliament, ‘Intellectual Property Rights for the Development of Artificial Intelligence Technologies’ (2020).
[14] Naruto v. Slater, 888 F.3d 418 (9th Cir 2018).
[15] Thaler v. Perlmutter, 687 F Supp 3d 140 (DDC 2023).
[16] United States Copyright Office, Zarya of the Dawn Registration Decision (2023).
