AI and Law Forum: Fashion, Copyright and AI: Does the New Creative Environment Come with New Copyright Issues?

By Dr Luo Li, Coventry Law School

The AI and Law Forum is hosting a seminar series on AI and its related legal issues this academic year, with fashion and AI is the focus of the first seminar. Fashion, an industry with a sole engine of creativity, embraces massive intellectual activities that are protectable through intellectual property rights. That is why the fashion industry is recognised as an extremely intellectual property (IP)-intensive industry. Like many other creative industries, the appearance of artificial intelligence (AI) brings a significant influence in almost every aspect of the fashion industry from trending for design to manufacturing mass-produced products. The fashion industry has suffered complicated copyright issues from long before AI has been engaged in this area. Nevertheless, a gradually increased application of AI technology in the fashion industry seems to raise more issues both within and beyond the copyright context.

As the founders of the Forum, Dr Luo Li and Dr Amber Darr invited Ms Heidi Härkönen, Senior Researcher at the Faculty of Law, University of Turku in Finland, to deliver a guest talk on 24 February 2021 on how AI raises complicated copyright issues in the fashion industry. Ms Heidi Härkönen is the founder of the Finland Fashion Law Association and her PhD research is about fashion, copyright and sustainable development.

During the seminar, Ms Heidi Härkönen introduced three types of AI-related outputs based on the extent to which AI interferes with its efforts of “creativity” in these outputs. She then divided the applications of AI in the fashion industry into three aspects:

  1. AI applications as an assistant to help with tread forecasting is to predict current and future trends for the human designers to create garments to find appealing;
  2. AI applications as an assistant to creativity to help human designers in styling and designing fashion garments;
  3. AI as an independent designer where AI delivers a creative design by itself, exactly like human designers do. Such fashion garments are made with a minimized human interference and AI has a full decision-making capability during the whole creative design process. She terms these garments made by AI independent designers as ‘AI-generated outputs’.

She concluded that at present AI is applied more as a human-designer assistant for stylists instead of an independent designer. However, she noted that we should not ignore the potential capability of AI applications in the future in the creation of fashion design.

“the myth of the creative genius in civil law countries is much similar to what fashion research has identified in the context of the fashion world”

Ms Heidi Härkönen

Ms Heidi Härkönen then focused on what kind of specific copyright issues were raised because of AI-generated creative efforts in fashion design. Härkönen first introduced: “the myth of the creative genius in civil law countries is much similar to what fashion research has identified in the context of the fashion world”, before identifying a series of new copyright issues of which there needs to be awareness: existing copyright system sets up its game rule that output could be protected only if it is made by human authors with originality (in most civil law countries’ copyright system, originality means personality linking with human beings). Therefore, it seems an output made by an AI is unable to meet the human authorship requirement. Härkönen argues that if AI-generated creations end up in the public domain, it would not only hinder the development of AI systems, but it also may bring fast fashion threats – a subsequent sustainable development issue considering AI-generated designs would be free for everyone to copy. While discussing any legal solutions and considerations, Härkönen introduced several opinions in academia including treating AI-generated works as computer-generated works provided in UK Copyright, Design and Patent Act 1988, a dual system covering romantic protection and industrial protection, and works made for hire in the purpose of covering AI-generated fashion designs into copyright protection. During the discussion session, Dr Luo Li provided her opinion on why computer-generated works are not suitable to cover AI-generated outputs.

Finally, Härkönen concluded that it is important to see the big picture when considering AI creativity and copyright. She proposed to look at “how will AI change the market for copyright content due to low-cost mass production of works that look and function like human-created works”. She warns that copyright law should be cautious in treating AI-generated fashion design as a public domain thing, because excluding AI-generated design into the copyrighted area would result in a substantial encouragement to the overproduction of low-cost garments business which may lead to “overconsumption and environmentally damaging outcomes”. Dr Amber Darr proposed that the focus should be on opportunities for AI to drive the fashion industry in a more positive way as opposed to having a more negative impact.

You can find out more about Luo’s research through her Pure profile, where you can find more on her research interests, publications, and contact details. You can also find out more about Coventry University’s research through our dedicated research pages.

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