As the fashion industry delves further into the realm of generative artificial intelligence (“AI”), a copyright-centric decision from a U.S. federal appeals court has some potentially far-reaching implications. In a decision this week, the U.S. Court of Appeals for the D.C. Circuit affirmed that copyright protection is reserved exclusively for works created by humans. The court’s finding in the case over a 2-D artwork comes amid rising adoption of generative AI across industries and signals a firm judicial boundary when it comes to protections for non-human authorship.
The Background in Brief: In November 2018, Stephen Thaler lodged an application with the U.S. Copyright Office to register his AI-created artwork, titled, “A Recent Entrance to Paradise,” naming the author as the “Creativity Machine,” an AI system he developed. Thaler claimed the work was created autonomously by the AI and sought to register it as a work-for-hire under his ownership. The Copyright Office denied the application, prompting Thaler to seek court intervention.
A judge for the U.S. District Court for the District of Columbia upheld the Copyright Office’s decision in August 2023, with the court holding that that U.S. copyright law only protects works of human creation, and AI-generated works without human involvement are not eligible for copyright. Thaler subsequently lodged an appeal with the D.C. Circuit.
A Narrow Holding with Broad Implications
In its March 18 decision, the D.C. Circuit unequivocally sided with the Copyright Office, reinforcing the agency’s longstanding human-authorship requirement. Writing for the panel, Circuit Judge Patricia Millett rejected Thaler’s contention that non-human authorship is permissible under the 1976 Copyright Act, emphasizing that the Copyright Act vests rights “in the author or authors of the work” and that its language presupposes a human actor.
While the court’s holding is relatively narrow (rejecting copyright registration solely for works authored entirely by AI), it leaves open the question of works created with AI assistance, so long as there is sufficient human input. The Copyright Office has acknowledged that such hybrid works may qualify for protection, provided a human can be identified as the creative force behind the output.
As for the implications of this decision, they are poised to resonate across creative industries, including fashion, where AI-generated designs, marketing materials, and digital art are becoming increasingly commonplace. While humans who use AI tools to develop designs may retain copyright, the court’s decision in the Thaler case firmly denies any path to protection for works generated wholly by machines. As such, for fashion brands investing heavily in AI-driven innovation, this ruling underscores the importance of maintaining human oversight and involvement in the creative process to allow for legal protections.
THE BIGGER PICTURE: As TFL recently reported, hype around AI in fashion seems to be at a fever pitch – from enlisting generative AI tools to create clothing designs to using AI-generated imagery and videos in ad campaigns. Some of the recent attention stems from a handful of images created by Paris-based creative Sybille de Saint Louvent, which provide a glimpse into how AI is reshaping marketing. In short, these visually compelling images make it clear that we are far removed from brands’ early, rudimentary attempts to use AI in campaigns.
At the same time, other creators have demonstrated how AI can be used to craft designs, with designer Gianfranco Esposito “transforming” a look from Gucci’s recent runway show into a version more aligned with the aesthetic of the brand’s former creative director, Alessandro Michele. According to Esposito, the result “stay[ed] true to the original design while reimagining it with a more vintage and romantic silhouette.”
Not only do these examples showcase how AI can play a powerful role in the fashion design and marketing processes – offering fresh and creative concepts that can be further developed into full-fledged collections and/or campaigns – but they also shed light on the broader potential for AI’s applicability in the fashion and luxury space.
The case is Stephen Thaler v. Shira Perlmutter, et al., 1:22-cv-01564 (DDC).
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