Artificial Intelligence and Work Ownership in Fashion Sector
“Because each of our means, like the sculptures made by Daidalos, or as the poet said, “They go to the meeting of God by themselves” as the Hephaistos' traymobiles, if they could fulfill their work only by us telling or let’s say by realizing themselves what to be done, like the shuttle of the loom moves by itself or lyre’s plectrum plays on its own .” Aristotales, Politics
Artificial intelligence, which has become a phenomenon in today's technology is used in every field, from the smart devices to the e-commerce sites; from the defense industry, to the art. Technology is moving faster than ever and the robots and the machines are the new way of doing business in fashion industry. In the digitalizing world, the fashion industry which is in close contact with technology by its nature, investing in technology and sets up various cooperations. Artificial intelligence is a real go-getter in the fashion industry from digital fashion shows to digital models; from style consultancy applications to the smart stores. It looks like the usage of artificial intelligence will be used increasingly in the fashion industry as the creativity transforms into the materials. Who can deny that the artificial intelligence which is an assistant of the designers now, will replace the latter in the future? In this research article, it is our aim to study the authorship issues of the artificial intelligence products in the fashion industry.
The fashion designs are protected by the Industrial Property Law in Turkey as long as they are new new and distinctive. They also are protected by a cumulative protection if they are within the context of Intellectual and Artistic Works Law (FSEK). Within the scope of FSEK, the definition of the owner of the work is the person who created the work, and the definition of the work is the features of the owner, in other words, the creativity (as the originality) embodied all kinds of intellectual and artistic products as science and literature, music, fine arts or cinema works. Both in Turkey and elsewhere in the world, the minimum requirement to become an author of the work is being a human, expressing the creativity and originality of the person. Therefore, currently, in order to be protected within the Intellectual Property protection laws, the creative works must be a product of a person according to the copyright protection laws in Europe, America and Turkey.
Let us review, Burrow-Giles Lithographic Co. v. Sarony case which was the first case discussed as the work performed by a machine. Photographer Napoleon Sarony takes a portrait of Oscar Wilde named "Oscar Wilde 18". Due to Burrow-Giles' unauthorized use of lithographs, Sarony sues Lithographic Co. for copyright infringement. This was the first case where it was discussed if a photograph taken by a machine would benefit from the copyright protection. The defendant claimed that the photograph was not the “product of the work owner”. On the other hand, photographer Sarony claimed that the photograph was the work of himself as he made several artistic decisions and he decided on the pose and the clothes of Oscar Wilde and designed the light and background of him. The court accepted that the photographer is the owner of the work and he is the creator of that literary work and he should benefit from copyright protection as a result of his creative expression.
As there was no photograph machine when the regulation was in its draft stage, the court is obliged to protect the photos as literary works1. When the ownership issue of a work was defined at Burrow-Giles case, it is ensured that the person who did the arrangement, determined the pose of the subject and the location, and arranged the light is the owner of the work. Nowadays, the works produced by artificial intelligence tools also lead to a similar discussion, but the situation appears to be more complicated than that and artificial intelligence has a completely different technology. Beyond initial engineering, such tools can learn and train themselves with little or no human input. Thus, even if people build the machines themselves, there are situations where there are no creative human preferences directly involved in the creative output of a fully autonomous machine. Dynamic and self-regulating systems are emerging that can operate without the need for human intervention.
It is not possible to formulate a single definition of artificial intelligence, however, artificial intelligence can be defined as “systems that are able to think and act like humans”. Artificial intelligence can process a large amount of information as self-learning machines and create the works requested within the scope of this software2. The computational creativity of artificial intelligence involves a machine's ability to receive and process input, resulting in a new combination of pre-existing ideas and information3. The artificial intelligence technology possesses innovations with a high degree of autonomous computing creativity enough to require a reexamination of the copyright standard. When these creations are related to creative fields, the qualification of artificial intelligence devices as artists and designers is also debatable.
Today, when the artificial intelligence tools are used in the fashion industry, people are a part of the process and are not completely excluded. The designers are still a part of the process to determine the texture, color, consumer background or what designs created by the artificial intelligence will be the trend, even if artificial intelligence or the algorithm of the artificial intelligence tool is used4. In other words, artificial intelligence or the algorithm creates a job by processing and analyzing the data that the programmer and / or end user (designer / brand itself) uploads to the system. The important point here, in terms of ownership of the work is that the programmer can write a self-learning algorithm, and when the data is loaded as input by the designer, it can be reckoned that the production of artificial intelligence is a work of the designer. In the case where artificial intelligence produces a work and/or a product suitable for protection, who is the owner of the work? Is it the programmer, the end user - the designer- or the brand which is also the investor? This is a very controversial issue. Another alternative is that the artificial intelligence itself becomes the owner of the work it created; however, that option for now does not seem to be possible in any legal order. However, I believe that this is an issue to be discussed in the future.
For a software to be considered as a work, it must have an original feature of its own and be produced as a result of a study. As a rule, the artificial intelligence systems benefit from copyright protection under intellectual property law. In this context, the person who created the software is the author of the work. However, to determine whether the products of a software which enjoys the copyright protection should also be entitled for protection, must be determined according to the actual case. According to the practices and the policies of some countries, the programmers also have rights on the products of the artificial intelligence. Works arising from random and mechanical processes are outside the scope of copyright. But mechanics is now at another dimension.
Databases are protected as works when there is a selection and editing. It is not possible to talk about a single author of the work if a brand uploads the data and educates the software written by the programmer. On the other hand, in cases where an artificial intelligence has a self-learning function, the algorithm and the artificial intelligence device maintain the basic codes, but it may be far ahead of the system in terms of the products it produces; therefore, I believe that the authorship rights of the programmer will fall short in terms of the products.
Brands and designers are the customers for the programmer. An artificial intelligence production fulfilled by an order qualifies to be a work contract. In practice, right ownership is determined at the contract stage signed between the parties5. It is attempted to end the ownership discussions by making the license agreements or purchasing the artificial intelligence system. Another analogy used for artificial intelligence products is the recruitment procedure; In this case, at least the financial rights of the works produced by the artificial intelligence device belongs to the brands or designers by job description.
How are artificial intelligence devices and/or algorithms used in the fashion industry?
Three-dimensional fashion design software program, CLO that offers virtual clothes6 collects customer style references and measurement inputs. The artificial intelligence system synthesizes the customer's preferences and applies them to the trending styles and past customer e-commerce learning systems. The customer can try out the clothes that are designed by artificial intelligence which are designed to the preferences of the customer. Then the three-dimensional platform creates these clothes using tailor robots. Eventually, the customer buys and wears them.
The artificial intelligence system "Fashion ++", developed by researchers of Facebook AI Research, University of Texas at Austin and Cornell Tech, Georgia Tech, is produced as a new virtual friend to provide style advice to the user7. The Fashion ++ is an artificial intelligence system using a deep image rendering neural network which recognizes the clothes and provides suggestions such as what to remove, add or swap. Fashion ++ is trained by uploading 10,000 clothing images which are shared at the internet websites. What should not be worn as clothing is also part of the training. Therefore, even though the algorithm has been written, fashion designers are at work for training.
In this system which is designed to give suggestions, the user gives an outfit image, the artificial intelligence system offers the user various alternative options by analyzing the color, pattern, texture and the shape of the outfit with the "visual recognition" feature. One aim of this project is to demonstrate the potential of useful AI (supporting) technologies that propose small, practical changes that have meaningful effects.
Another example is Levi Strauss & Co. The company used the expertise of human stylists and the artificial intelligence and created “The Levi’s Virtual Stylist” to become the personal assistant to the customers during shopping8. Due to the contributions of the human stylists, it is obvious that the credit cannot be given to the artificial intelligence programmer only.
Additionally, the artificial intelligence systems secured its place at the fashion industry as a “designer assistant”. Tommy Hilfiger, IBM and New York Fashion Institute of Technology (FIT) developed an artificial intelligence designer assistant for Tommy Hilfiger brand utilizing IBM's artificial intelligence tools and involving the students. They uploaded 15,000 design images of previous Hilfiger collections to the database. The students helped the artificial intelligence to learn to be a wise designer with fabric patterns, colors and styles to create the latest fashion designs9. In this collaboration, a contract has been signed between the parties without leaving any room for doubts on the ownership of the work. The students will have all the copyrights on the products produced by the artificial intelligence.
Yoox brand10 released a collection called "8" using artificial intelligence. Yoox design team analyzed the predictable indicators of the emerging trends of artificial intelligence in their collections. They used artificial intelligence to examine fashionable contents from social media and online magazines in major markets. Then they analyzed data from sold products, customer feedbacks and buying trends in the industry. The brand then combined this data with its own data and created this new collection11. Yoox brand, by using its own artificial intelligence system, has avoided the claims of possible work ownership.
In the fashion industry, many brands use sales partners and/or stylists to personalize their customers' search experiences, to offer specific products to the customer, to catch new trends, and to analyze existing data. It is too early to talk about the “creativity” in the sense of Law on Intellectual and Artistic Works (LIAW) for all AI studies. Maybe it's not human creativity in artificial intelligence systems, but machine creativity is at stake. In this new and very void space, strong fashion brands are trying to eliminate gray areas with strong legal contracts not to leave any doubts. As the technology is advancing so fast, the rules to be adopted today should also encourage the use of artificial intelligence. For now, we are observing how the systems which the designers and artists use as tools today will develop with neural networks tomorrow.
Att. Burcu Kaya, LL.M
This article was written in December 2020 for the digital magazine ILAWFASHION, which was published by Moda Hukuku Enstitüsü in recent years, and was only published in the relevant media.
1 Caen A. Dennis, AI-Generated Fashion Designs: Who or What Owns the Goods?, Fordham Intellectual Property, Media and Entertainment Law Journal, Volume 30 XXX, Number 2,2020, s.
2 Kyra Nezami, AI and Intellectual Property: Can AI Infringe Copyright?, IP HARBOUR (Aug. 14, 2017), https://ipharbour.com/blog/latest/ai-intellectual-property-can-ai-infringecopyright/ [https://perma.cc/92FX-TM57].)
3 https://jolt.law.harvard.edu/digest/artificial-intelligence-and-authorship-rights
4 Caen A. Dennis, AI-Generated Fashion Designs: Who or What Owns the Goods?, Fordham Intellectual Property, Media and Entertainment Law Journal, Volume 30 XXX, Number 2,2020, s.602
5 A.Denis, 623
6 A. Dennis, s.610; https://www.clovirtualfashion.com/
7 Fashion++: Minimal Edits for Outfit Improvement, Wei-Lin Hsiao, Isay Katsman, Chao-Yuan Wu,Devi Parikh, Kristen Grauman,
8 Levi’s ® Launches New ‘Virtual Stylist’ Online Feature LEVI STRAUSS & CO. (Aug. 31, 20179
9 https://www.forbes.com/sites/rachelarthur/2018/01/15/ai-ibm-tommy-hilfiger/#1b1a451278ac
10 Yoox sells primarily high level brands such as Dolce & Gabbana, Jil Sander, Marni, etc. and is the owner of Net-A-Porter Group (internet retailer, No. 78 among top 1000 in 2018)
