Generative AI in fashion design creation: a copyright analysis of AI-assisted designs

Abstract The growing use of generative artificial intelligence technology (gen-AI) technology in design creation offers valuable tool for increasing efficiency and for widening the creative perspectives of fashion designers. However, adopting AI tools in the fashion design process raises important copyright concerns, too. First, this article explores copyright implications from the use of gen-AI in fashion design creation, given that in-copyright content, including pre-existing original designs, can be part of the corpus of data mined for training gen-AI systems. In light of both UK and EU copyright law, the article analyses the circumstances under which the use of AI tools in new design generation can negate their originality as works of applied art under Infopaq and subsequent CJEU decisions, whilst enriching the discussion with elements of fashion theory. It further examines copyright infringement concerning AI-generated fashion design outputs, focusing on the right of reproduction under the InfoSoc Directive 2001/29/EC and the UK CDPA 1988, as well as transformative uses of AI-generated derivative designs. The article concludes that gen-AI can have a considerable impact for fostering fashion innovation. It argues that this technology can contribute to the creation of novel original works of fashion that could derive from a more diverse ‘pool’ of fashion archives and pre-existing designs as part of AI systems’ text-and-data mining.