Generative Artificial Intelligence is rapidly transforming the fashion industry, where brands now use algorithms not only to design garments but also to manage industrial processes. This shift is intensifying long-standing intellectual property debates, particularly around copyright, authorship and the protection of designs created with the assistance of Artificial Intelligence. Legal systems in the United States of America and the European Union are under pressure to address new questions raised by the exponential growth of these tools, especially as fashion companies seek to register works that blend human creativity and machine-generated output.
In the United States, lawyers, registration offices and courts are developing practical guidance to handle copyright claims involving generative Artificial Intelligence. On March 16, 2023, the U.S. Copyright Office issued Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, addressing whether a work produced by generative Artificial Intelligence is protected by copyright, whether a work consisting of both human-created and Artificial Intelligence generated material can be registered, and what information applicants must provide. Case law such as Thaler v. Perlmutter and the Kristina Kashtanova matter has clarified that protection requires (i) a human expression and (ii) a final creative control of the author, and applicants must disclose if their works include content produced through generative Artificial Intelligence. In parallel, the European Union is pursuing a more legislative approach within a civil law framework, but shares the core principle that originality must come from the human mind, and international copyright regimes, along with countries such as Canada and Australia, also require an intellectual effort and original expression by a physical person.
The United Kingdom diverges by allowing protection for “computer-generated” works if a human has made the arrangements necessary for their creation, which could lead courts to recognize the operator of an Artificial Intelligence tool as the author. This stance highlights difficult ownership questions in fashion, where human designers increasingly rely on generative Artificial Intelligence for silhouettes and models. In the United States, a luxury brand that only selects final designs produced by an Artificial Intelligence system, without substantial human editing or arrangement, risks its collection falling into the public domain, whereas in the United Kingdom an Artificial Intelligence originated design could be protected by naming the operator or coder as author. Commentators argue that fashion law is at a crossroads between strict human authorship requirements and vague faith that courts will adapt over time, and they call for a more nuanced future in which laws recognize the role of Artificial Intelligence without erasing human creativity. In this vision, human creativity remains the core of intellectual property in fashion, and regulation should encourage innovation while preventing automation from enabling exploitation of third-party works, ensuring that those who use Artificial Intelligence as a tool yet preserve a human creative essence receive copyright protection and brand value.
