The Authors' Take - Fashion Piracy and Artificial Intelligence - Does the New Creative Environment Come with New Copyright Issues?

Fashion Piracy and Artificial Intelligence - Does the New Creative Environment Come with New Copyright Issues?

by Heidi Härkönen

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 will be made available on Advance Access soon]

The Authors' Take - Private Copying of Fashion Designs – Should Fashion Houses Intervene or See it as an Opportunity?

Private Copying of Fashion Designs – 

Should Fashion Houses Intervene or See it as an Opportunity?

by Heidi Härkönen

Knock-offs are not always produced by cheap fast-fashion companies or shady counterfeit businesses. Anyone who follows sewing-themed social media knows how common it is for amateur seamstresses to create skilfully-made knocks-offs of well-known fashion designs. Especially children’s fashion seems to be the target of copycats, and the most-copied brands mainly produce clothes for children. The reasons for private copying are not only financial but also related to needs of altering or personalizing the product somehow.

Private copying of fashion designs has existed throughout the modern fashion industry. However, in the 21^st century, images of these copies can easily spread to wide populations and gain fame, which has potential effects on the brand image of the copied fashion house. Thus, should fashion houses intervene and can they even intervene in this kind of activity?

When it comes to copyright protection, amateur seamstresses will likely be able to rely on the InfoSoc Directive’s private copying exception in most Member States. Design right and trademark protection will often be equally ineffective, since most home-sewers will not make copies for commercial purposes or use a trademarked sign in the course of trade.

Legally, the problem of home-sewn copies is rather simple. Fashion houses as intellectual property right holders have very little that they can do to prevent people from home-sewing copies of their fashion designs, since without any commercial purpose it will often fall outside of the scope of exclusive rights.

However, instead of ignoring the phenomenon of home-sewn copies, fashion houses could utilise the copying habits of sewing amateurs and make profit out of them. Providing sewing patterns or “DIY-packages” of bestseller products for private copying could benefit both the brand and the person whose intention it is to make a private copy of the product in question. This way the brands could engage new customer groups. Especially brands that manufacture children’s fashion could see this as an opportunity, since children’s fashion seems to be the most copied segment by sewing hobbyists.

[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). An extended version of the present contribution will be included in our Fashion Law Special Issue, due for release as Issue 11/2018, and published with the following title: 'THE NEW ERA OF HOME-MADE FAKE FASHION - The phenomenon of home-sewn copies and the possibilities for fashion houses to take advantage of it.']