In search of the author of clothes made with algorithms

This week the 78th edition of the Mercedes Benz Fashion Week was held, one of the main showcases of Spanish fashion, which is now 39 years old. Parallel to these traditional events are new initiatives, such as the first AI Fashion Week, which took place in April in New York. An event that shows that this industry is experiencing a profound global transformation related to new technologies and, in particular, to the integration of artificial intelligence (AI) in design, production or marketing processes.

The use of AI in the fashion sector is not new. "Classic AI has been used to manage product stocks, measure trends or classify potential groups of customers," says Cristina Mesa, a partner in Garrigues' industrial and intellectual property department. A clear example of this is Inditex, which has always been a pioneer in managing the supply chain more efficiently using predictive tools to adjust manufacturing to demand and avoid stock. "A different issue is the most recent generative AI, which has a full impact on the creative leg of the sector," says the lawyer.

Through generative AI, explains Cristina Mesa, complete collections can be created, based on previously detected trends, and even evoke the style of certain designers. In this sense, the Stitch Fix brand uses generative artificial intelligence platforms to personalize style recommendations. Desigual, for its part, has just presented its collection designed with the support of algorithms. Something that Stradivarius already did with its spring/summer 2023 collection in which the entire campaign was created with AI, from the production of the garments to the models, which were avatars.

Faced with this new reality in which generative artificial intelligence is increasingly widespread among brands, Carlos Rivadulla, lawyer and TMT manager of ECIJA, warns that the main legal challenges are intellectual property and the copyright of garments. First, the lawyer stresses that no design created solely by AI can be protected or registered. "The problem arises with mixed creations. Above all, if the user does not declare it and requests the registration of a design as their own, "he warns.

Carlos Rivadulla believes that there are many doubts in relation to mixed creations that can bring conflicts and that still do not have a legal answer. As, for example, what happens when the designer relies on AI, what weight the help of AI has in the final result or what importance should be given to the designer's own indications or instructions (prompt) (natural person). "The law often does not advance at the pace of technology," says the expert, who adds that "it is not ruled out that, in the near future, and depending on the quantity and quality of the input provided by the human designer/creator, these works may generate some kind of related right, such as mere photography."

Lawsuits

The training of these systems requires the ingestion of millions of data among which there may be works protected by copyright. This is another of the contentious issues in this area: intellectual property infringements when using protected third-party material to train artificial intelligence systems. "All the lawsuits that have been filed in the field of AI and that have transcended are related to this point, although at the moment there is no decision," says David Gómez, managing partner of Baylos.

There are, according to the lawyer, two major opposing currents. On the one hand, that of authors and content creators who allege that the use of their works to train AI systems infringes their rights. And on the other, that of a large part of the industry and some theorists, who advocate liberalizing access to data or content so that AI systems can be as robust as possible, creating a kind of safe harbor, fair use or exception, which exempts developers of AI systems that use copyrighted content in their training. For David Gómez, it is most likely that over time he will end up adopting some position that protects intellectual property rights for free use by AI.

As for who is responsible for infringements of third party rights by creations made by AI systems, David Gomez has no doubts. In his opinion, the user of the AI platform should be held accountable, since he is the one who generates the product by using a certain prompt (request to the machine) to market it later.

Silvia Muñoz Valera, CEO of Nueva Abogacía, resolves that the conflicts caused by the extension of artificial intelligence in the textile industry will deal with the classic legal issues of fashion law, such as intellectual property, but "presented in a completely different way from how we knew them until now". "Conflicts have the same background, but they develop through a technology that offers a world of great possibilities and great risks," he concludes.

Specifically, adds Cristina Mesa, "it is expected that there will be demands in those cases in which collections are designed based on the 'style of' in which the discussion focuses on when an output generated with AI crosses the blurred boundary between inspiration and plagiarism".

Avatars as models

One of the applications of generative AI increasingly integrated in the fashion industry is the use of avatars in advertising campaigns or parades. For example, Levi's has announced that, from the end of this year, it will combine flesh-and-blood models with avatars developed by AI tools. Outside the textile sector, the Japanese brand Shiseido has used for a campaign two avatars created by The Digitals, the first digital modeling agency. In these cases, the legal risk is the possibility of an infringement of image rights. "An artificial intelligence model is trained with pre-existing information and images, so it is likely to have similarities with real people, who enjoy rights to protect their image," explains Carlos Rivadulla, TMT lawyer at ECIJA.

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