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AI Poses New Threats to Copyright in Fashion

Updated: Apr 18, 2019

By Sierra Petro

A mix of lawyers and students filled the 9th Annual Fordham Fashion Law Institute Symposium at Fordham Law School in Manhattan. (Photo by Sierra Petro)

Works created by computers or animals are not protected by the current copyright law, which is leading to new problems around artificial intelligence used in the fashion industry.

"The state of the law continues to lag behind the technological advancements that we’re seeing," partner at Hogan Lovells, Meryl Bernstein said.

Bernstein was a featured speaker at the 9th Annual Fashion Law Institute's Symposium on April 12 at Fordham Law School in Manhattan.

One way that companies are working around this potential copyright problem is by adding a human element to the design process. Stitch Fix is an online styling service that uses both algorithms and human stylists to send customers curated packages of items to choose from.

According to Casey O'Connor, the company's associate general counsel, Casey O'Connor, "We at Stitch Fix want to make sure we own every single step in the design process so we don’t offend anyone who thinks we’re using their copyrights in our styles and so that we can protect it later in case somebody tries to infringe our copyright."

Dan Tasse, a data scientist at Stitch Fix, explained a project called hybrid designs that he is working on, which could pose threats to copyright.

Hybrid designs are new designs created by an algorithm from parts of existing styles. The Stitch Fix service works by sending customers a package of five items, which they can then choose from to purchase or send back. The performance rate of different tweaks to styles can be measured by how many customers keep a style.

"Across the average, hybrid designs have been more successful than the new thing we buy. They get more variety into the clothes we offer and allow us to not take so much of a risk as just buying brand new styles," Tasse said.

Though there are positives to the hybrid designs, there are still some aspects of using an algorithm to create new styles that the company must watch out for.

Stitch Fix can't, for example, use any brand's existing prints when coming up with new designs or the company risks infringing upon copyright. It's not currently an issue for the company because it doesn't make enough revenue from each individual style to risk dealing with copyright claims, according to O'Connor. However, if the issue were to arise of trying to copyright a hybrid design, the company would argue that the algorithm wasn't the main creator of the design.

The ruling that works created by a non-human are not subject to U.S. copyright was determined in 2016 after PETA sued a photographer who self-published a book including a monkey's selfie.

"We don't do 100 percent machine-made prints, so we would argue, even after our hybrid designs made with the algorithm, that we then give our designs over to our design team, which tweaks them," O'Connor said.

AI can help in identifying copyright infringements, according to Bernstein, by having the ability to filter through images on the internet more efficiently and cheaply than humans could. There are, however, a lot of unanswered questions regarding AI and the law that are currently left unanswered, she said.

"As a lawyer, there's a lot of questions that come up chiefly around privacy and intellectual property ownership and infringement. Who's responsible if an AI design is infringing; is it the developer or the brand? Unfortunately, there are no easy answers," Bernstein said.

When the question came up of whether humans intervening in the design process is still useful in product development, Tasse explained why it certainly is for Stitch Fix.

"The human feedback isn't just a checkoff. We really need the human designers to refine the list of styles generated by the algorithm. One of the best examples is: green was one of the best performing colors and polka dots was one of the best performing prints for a certain segment, but the algorithm didn't know that if you combine green and polka dots, you get a lot of feedback that the style kind of looks like a clown," Tasse said.


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