Fashion Piracy and Artificial Intelligence - Does the New Creative Environment Come with New Copyright Issues?
The development of artificial intelligence (AI) creates challenges both for the copyright system and for the fashion industry. Nowadays and especially in the future, creative outputs by fashion designers are being challenged by AI-generated works. This is likely to create new copyright issues for an industry that is already notorious for its complex copyright environment. What is more, the approach that copyright law takes towards AI-generated fashion designs might have an effect on the sustainable development of the fashion industry.
The key copyright challenge that the fashion industry faces is related to fashion designs passing the originality threshold and hence qualifying for protection. Because the functionality of a garment dictates its design usually at least to some extent, it is rather difficult for fashion designs to pass the originality threshold. In many cases, this reduces the legal risks of copying fashion designs. As long as the modern fashion industry has existed, it has struggled with copying, imitation and knock-offs. Hence, this paper has a particular focus on copyright infringement issues that the fashion industry is likely to face due to the increasing use of AI fashion designers.
The lack of protection has helped especially fast fashion companies to knock off popular designs of others. Fast fashion – meaning cheap, mass-produced, low quality garments that imitate popular designs created by, e.g., high fashion houses or indie designers – has played a significant role in driving the fashion industry into an environmentally catastrophic situation. Currently, fashion is one of the most polluting industries in the world. The total greenhouse gas emissions from textile production are more than those of all international flights and maritime shipping combined (Ellen MacArthur Foundation, 2017). Hence, one could state that sustainability is probably the most significant challenge of today’s fashion industry and cannot be excluded when considering the future legal environment for the industry. Thus, the sustainability perspective is also taken into account in this article.
In the current copyright environment, it seems that AI-generated fashion designs would be more vulnerable for copyists than human-created designs. The copyright system is primarily created in order to protect the creative endeavours of human creators. Since an AI fashion designer is not a human being, in most cases creations generated by it would fall into the public domain if there is not sufficient human input behind the creativity. This means that these AI-generated fashion designs would be free for everyone to copy, and fast fashion companies would have even less legal risks when it comes to their habit of knocking off popular designs by others. This creates a challenge that is especially related to sustainability: according to some previous legal research, copying is the engine of the fashion industry that keeps the industry going. Without copying, the fashion cycle would appear much slower (Raustiala & Sprigman, 2006). However, in today’s world, where way too many clothes are being produces, purchased and disposed, a faster fashion cycle is the last thing that the world needs. Instead, when considering how the copyright system should treat AI generated fashion designs, one should not come up with solutions that make fashion copying even easier.
This paper concludes that, due to the aforementioned reasons, the copyright system should find a way to include AI-generated fashion designs in its protected subject matters. One option to do so would be that a computer user who initiates the creation of an AI-generated work should be recognized as the author and copyright owner of the resulting work (Denicola, 2016). Another possibility would be to develop copyright protection into a “dual system”, that would be divided to “romantic” protection of human-created original works, and “industrial” protection of investments and development of machine creation (as suggested by Alén-Savikko, Ballardini and Pihlajarinne, 2018).
Furthermore, this article states that recognizing AI creativity in the eyes of copyright law would be a suitable solution for fashion houses that actually do create designs themselves – with or without the help of AI. It would not serve the business strategy of the kind of fashion operators that just rely on copying successful designs of others, which is what many fast fashion companies tend to do. If the copyright system would consider AI creativity worth protecting, the system could also provide incentives to develop and utilize AI designers, in addition to promoting creativity instead of imitation.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution, which will be included in our special Image Rights Issue, will be made available on Advance Access soon]