Fashion Law and technologies in the Age of Artificial Intelligence

Introduction

Fashion isn't just about trends and designs; it's a multi-billion dollar industry with legal implications spanning from Intellectual Property to labor rights. In Brazil, the intersection of Fashion and Law has become increasingly prominent as the industry grows and evolves. From trademark disputes to sustainability regulations, fashion law encompasses a diverse range of issues that impact designers, brands, and consumers alike.

Fashion designers in Brazil may seek protection for their original designs through copyright, design and trademarks. While copyright automatically protects original artistic works, including fashion designs, obtaining design patents provides an additional layer of legal protection against unauthorized reproduction or imitation. Obviously, trademark is the foundation for distinguishing brands in a crowded marketplace.

However, the technology is pushing the fashion market really forward and beyond. Advancements, such as blockchain-based authentication and anti-counterfeiting solutions, are empowering fashion brands to track and trace their products throughout the supply chain, reducing the risk of counterfeit infiltration and enhancing consumer confidence in the authenticity of their purchases.

In a recent development, Brazilian companies Renner and Youcom have unveiled a groundbreaking initiative: jeans that boast 100% traceability through blockchain technology. Buyers of these denim pieces are granted unprecedented visibility into the entire production process, from the cultivation of raw materials to the final manufacturing stages. Collaborating closely with the Brazilian Association of Cotton Producers (Abrapa), both companies have partnered with certified farms that guarantee full traceability. From the inception of cotton cultivation to the delivery of the finished product, consumers can trace every step. Moreover, key players in spinning and weaving have joined forces to ensure that these jeans are manufactured with utmost transparency.

Blockchain offers a remarkable solution by meticulously recording every detail provided by each producer or supplier within the production chain. This not only alleviates the burden of proof concerning the rights holder but also empowers consumers to verify the authenticity of products and materials. With access to comprehensive monitoring along the distribution chain, consumers and creators can confidently ensure that the product they purchase aligns with its description, shielding them from potential fraud.

The fusion of fashion and technology has led to unprecedented advancements in the industry, with artificial intelligence (AI) playing a central role in shaping the creative process. However, as AI becomes increasingly integrated into fashion design, production, and marketing, it raises complex legal questions surrounding authorship and intellectual property rights.

AI and legislation in Brazil

Until April 2024, there were 80 projects in the Brazilian Congress and another 12 projects in the Senate. Many of them are similar and deal with complementary topics. Among the topics most mentioned in the propositions are:

·         Use of “deepfake” — resources that alter people’s faces and voices with credible results, through AI — to create false images and audio of people for political, advertising or pornography use;

·         Reproduction and manipulation of the voice and image of people who have died;

·         Copyright and violation in works created by AI;

·         Use of facial recognition;

·         Specific sanctions for crimes committed using AI;

·         Application of AI in federal, state and municipal public administration systems;

·         Regulation of the use of autonomous land vehicles.

The hasty debate on the regulation of Artificial Intelligence (AI) in the Brazilian Congress worries institutions such as the Federation of Commerce of Goods, Services and Tourism of the State of São Paulo (FecomercioSP), the Brazilian Association of Software Companies (Abes) and the Association Brazilian Fintechs (ABFintechs), in addition to several companies in the sector, such as the Zetta platform. They joined at least 30 other entities to prepare and deliver to congressmen an Open Letter on the AI regulatory framework, arguing that the rules and bodies already existing in Brazilian legislation be considered in this process.

The Rise of AI in Fashion

Artificial intelligence has revolutionized various aspects of the fashion industry, offering new opportunities for innovation and efficiency. Machine learning algorithms can analyze vast amounts of data to identify trends, predict consumer preferences, and optimize supply chain management. AI-powered tools enable personalized shopping experiences, virtual try-on technologies, and targeted marketing strategies, enhancing both the consumer experience and business operations.

Audaces, a multinational company specializing in fashion industry solutions, has unveiled Audaces Sofia, an Artificial Intelligence tool set to revolutionize clothing creation within Audaces360, Latin America's first digital fashion production platform. Sofia enables textile professionals to simplify the creative process by generating clothing models based on descriptions, offering detailed and realistic illustrations.

This innovative tool also allows for the creation of unique prints from text inputs and produces photo-realistic images from previous designs. Matheus Fagundes, Audaces CEO, highlights the company's aim to integrate generative AI capabilities into its products, enhancing the technological experience for customers. Audaces Sofia marks the beginning of the company's ambitious growth plan for 2024-2030, with investments totaling approximately R$ 1 billion in new products, research and development, sales channels, acquisitions, human resources, marketing, and international expansion.

The Challenge of Authorship

At the heart of the debate surrounding AI in fashion lies the question of authorship—who or what deserves credit for creative works produced with the assistance of AI? While AI algorithms can analyze data and generate design concepts, they lack the subjective experiences, emotions, and cultural influences that shape human creativity. As a result, attributing authorship to AI-generated works poses a unique challenge for the fashion industry. Fashion designers, legal experts, and policymakers must grapple with questions of originality, ownership, and the rights of AI-generated content.

The AI-powered design platform <designs.ai> allows users to create custom fashion designs using machine learning algorithms. Users can input design preferences and receive AI-generated design suggestions, blurring the lines between human creativity and machine-generated content. This raises questions about the role of the user in the creative process and the ownership of designs produced with AI assistance.

In relation to the authorship issue, The Brazilian Congress is analyzing the Bill n. 303/2024, which suggests regulating patents for inventions created by artificial intelligence systems. Although not directly related to the fashion world, the possibility of having patents created by machines could lead the same principle to the aesthetic creations and the ones in connection with the fashion industry.

The Bill proposes that AI systems be recognized as inventors and owners of patent rights. Currently, the Brazilian Patent Office doesn't allow AI systems to be named as inventors in patent applications, leading to uncertainties. The bill aims to address these gaps but raises questions about who can apply for AI-generated patents.

Navigating Intellectual Property Rights

Intellectual property law forms the foundation of fashion law, protecting the creative expressions of designers and brands. However, the emergence of AI confuses traditional notions of authorship and ownership. Fashion companies must consider how to protect AI-generated designs and algorithms while respecting the rights of human creators. Copyright law, which grants protection to original works of authorship, may need to be adapted to accommodate AI-generated content. Additionally, trademark law may play a role in protecting AI-generated designs that become associated with a particular brand or aesthetic.

Companies, agencies and studios are already exploring the capabilities of generative AI. The magazine Vogue Brazil, for instance, debuted six covers in March 2023, all crafted using tools from this technology.

The magazine wanted to explore how creativity and artificial intelligence come together in fashion. Photographers and artists worked together, adding their own styles to the project, which included many different professionals.

The fashion brand Balenciaga faced backlash when it was accused of using an AI-generated design without proper attribution. The design, created by an artist using AI technology, raised questions about intellectual property rights and the ethical use of AI-generated content in fashion.

The Future of Fashion Law

As AI continues to shape the future of the fashion industry, fashion law must evolve to address the legal and ethical challenges posed by emerging technologies. Collaboration between fashion designers, legal experts, policymakers, and technology developers is essential to develop robust legal frameworks that protect the rights of creators while fostering innovation and creativity. Fashion companies must adopt ethical principles that prioritize transparency, accountability, and inclusivity in the use of AI technologies. By navigating the complex intersection of fashion law and AI, the industry can harness the full potential of technology while upholding the values of creativity, originality, and human expression.