This week saw the 78th edition of Mercedes Benz Fashion Week, one of the most important showcases of Spanish fashion, now in its 39th year. In parallel to these traditional events, new initiatives are emerging, such as the first fashion week with artificial intelligence (AI Fashion Week), which took place in New York in April. An event that shows that this industry is undergoing a profound global change related to new technologies and, in particular, the integration of artificial intelligence (AI) in design, production and marketing processes.
The use of AI in fashion is not new. “Classic AI has been used to manage product inventories, measure trends or classify potential customer groups,” points out Cristina Mesa, partner in the industrial and intellectual property department at Garrigues. A clear example of this is Inditex, which has always been a pioneer in managing the supply chain more efficiently using predictive tools to adapt production to demand and avoid stockpiling. “The latest generative AI is another topic that fully impacts the creative side of the industry,” says the lawyer.
Through generative AI, explains Cristina Mesa, complete collections can be created based on previously identified trends and even reflect the style of specific designers. In this sense, the Stitch Fix brand uses generative artificial intelligence platforms to personalize style recommendations. Desigual, on the other hand, has just presented its collection, which was designed with the support of algorithms. Something that Stradivarius has already done with its Spring/Summer 2023 collection, where the entire campaign was created with AI, from the production of the garments to the models who were avatars.
Given this new reality, in which generative artificial intelligence is becoming more widespread in brands, Carlos Rivadulla, lawyer and TMT manager at ECIJA, warns that the main legal challenges are intellectual property and garment copyright. The lawyer first emphasizes that no design created solely by AI can be protected or registered. “The problem arises with mixed creations. Especially if the user does not declare this and requests registration of a design as their own,” he warns.
Carlos Rivadulla believes that there are many doubts about mixed creations that can cause conflicts and to which there is still no legal answer. Such as what happens if the designer relies on AI, what weight does the help of AI have on the final result or what importance should be given to the designer’s (natural person) own hints or instructions (prompt). “The law often does not advance at the speed of technology,” emphasizes the expert, adding: “It cannot be ruled out that this will happen in the near future and depending on the quantity and quality of the input of the human designer.” /Creators, these works may generate some form of related right, such as mere photography.”
Litigation
Training these systems requires ingesting millions of pieces of data, including potentially copyrighted works. This is another conflicting issue in this area: intellectual property violations when using third-party proprietary material to train artificial intelligence systems. “All the lawsuits that have been filed and come to light regarding AI relate to this point, although there is currently no decision,” says David Gómez, managing partner of Baylos.
According to the lawyer, there are two major opposing currents. On the one hand, there are authors and content creators who claim that using their works to train AI systems violates their rights. And on the other hand, that of a large part of the industry and some theorists who are committed to liberalizing access to data or content so that AI systems can be as robust as possible, and thus a kind of safe harbor, fair use or exception create that exempts developers of AI systems from using copyrighted content in their training. For David Gómez, it is most likely that over time a position will be adopted that protects intellectual property rights for free use by AI.
David Gómez has no doubts about who is responsible for violations of third party rights caused by creations of AI systems. In his opinion, the user of the AI platform should be held accountable since he is the one who generates the product through a specific prompt (request to the machine) to market it later.
Silvia Muñoz Valera, CEO of Nueva Abogacía, concludes that the conflicts that the expansion of artificial intelligence in the textile industry will bring will concern the classic legal issues of fashion law, such as intellectual property, but “in a completely different way Mode of presentation”. we knew them until now.” “The conflicts have the same background, but are developed through a technology that offers a world full of great possibilities and great risks,” he concludes.
In particular, adds Cristina Mesa, “lawsuits are expected to arise in cases where collections are designed based on the ‘style’ on which the discussion focuses, when an AI-generated result crosses the blurred line between Inspiration and plagiarism transcends.” ”
Avatars as models
One of the applications of generative AI that is increasingly being integrated into the fashion industry is the use of avatars in advertising campaigns or fashion shows. For example, Levi’s has announced that it will combine flesh-and-blood models with avatars developed using AI tools starting later this year. Outside of textiles, Japanese brand Shiseido used two avatars created by The Digitals, the first digital modeling agency, for a campaign. In these cases, the legal risk lies in 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 have the right to protect their image,” explains Carlos Rivadulla, TMT lawyer at ECIJA.
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