Milan Fashion Week and Fashion Law Trends – Can Artificial Intelligence create a style? The relationship between fashion and technology

As we already discovered in some of our previous articles, from 3D avatars to wardrobe advisers, passing through CGI and Robot IT girls, artificial intelligence (“AI”) is shaping our outfits and looks. 

Indeed, AI is transforming the fashion industry in every element of its value chain and marketplace. In last years, all retail giants are using AI to improve the efficiency of sales systems and processes and to enhance clients’ shopping experience, offering a personalized service tailored on their interests and preferences.

Most of the biggest fashion houses – from H&M to Tommy Hilfiger – are now investing in algorithms that suggest styles to their customers.

After Amazon’s Echo Look App – an Alexa fashion assistant that keeps track of what is in your wardrobe and gives recommendations on what to include in your outfit – the company is introducing a new AI-powered tool named StyleSnap. StyleSnap can be considered as a Shazam for clothes, helping customers to find clothes to buy, matching the look in a photo and finding similar items for sale on Amazon mobile App.

Also, Yoox explored the potential of AI with its 8 by Yoox, the first fashion collection designed thanks to AI. 

Furthermore, following Zara’s interactive fitting rooms, with mirrors recognizing the clothes you are wearing and suggesting others to match them based on style, color and mood, also ASOS integrated “Fit Assistant“, an AI tool to help customers determine the right size, analyzing the clothes information and the purchase history to find the perfect fit.

The Chinese Alibaba, instead, announced – with their first “FashionAI” store – a revolutionary new retail as a means to simplify the shopping experience for customers using intelligent clothes tags, smart mirrors, and omnichannel integration. In particular, Alibaba installed special RFID (radio-frequency identification) tags and Bluetooth chips to inform customers about specific information on items, and gyro-sensors to help recognize how an item is being touched or moved.

Also, H&M adopted RFID mechanism to offer personalized recommendations, firstly for online shoppers, and then for customers of its physical stores. Furthermore, H&M launched – in partnership with Google – the new system “Coded Couture“, which allows users to create looks and outfits tailored on their lifestyle.

On the other hand, IBM teamed up with Tommy Hilfiger and the Fashion Institute of Technology (FIT) Infor Design and Tech Lab creating “Reimagine Retail” to design better personalized outfits for Tommy’s clients. 

However, using AI to create fashion items introduces a further level in the relationship between innovation and creativity, bringing a set of unanswered questions. Who is the owner of AI creations? Can AI infringe intellectual property rights of third parties? Which kind of personal data is collected by AI? Is the derived processing of such personal data subject to data protection regulations? Will artificial intelligence enhance or reduce creativity in the fashion industry? 

Under Italian law, creative works must be original to get copyright protection and traditionally the requirement of originality has been linked to the physical person of the author. In fact, under Section 6 of Italian Copyright Law, “the original entitlement of the acquisition of copyright consists of the creation of the work, as a particular expression of intellectual work” of the author. Therefore, machines and AI seem to be excluded from the notion of authorship. However, this does not mean that algorithmic artworks cannot afford copyright protection, as long as human choices are involved. 

In such a data-driven system, a fundamental role is played by data related to customers collected from websites, app and social media platforms. In fact, from personal data collected the AI tool can profile customers, their interests and tastes to propose them a tailored service. 

To this end, fashion brands addressing innovative service to European customers have to deal with the requirements provided for by the EU Regulation on the protection of personal data (“GDPR”) and the deriving national adequacy laws. Therefore, they have to consider carefully which kind of data to collect in order to respect the principles and requirements set forth in the GDPR. 

For instance, fashion houses shall collect and process ‒ for the time strictly necessary ‒ only personal data required for the purposes of the processing pursuant to the minimization principle provided for in article 5 of the GDPR. Furthermore, when companies process individuals’ personal data, they have to provide them with information and details about the processing of personal data carried on, guaranteeing individuals specific rights and freedoms according to articles 13-21 of the GDPR (such as, for instance, the right to access to data, the right to be forgotten, the right to data portability, etc.).

Lastly, the analysis of data related to individuals’ interests and tastes could entail a profiling activity of the individuals concerned, which requires the collection of individuals’ consent. In addition to the GDPR general principles above, fashion houses shall also consider any specific requirement under the applicable national law. 

In light of the above, the use of AI entails lots of legal obligations, but its idea of “cognitive creativity” is extraordinarily innovative and, for this reason, we are sitting on the front row, waiting for the new technological trends to welcome.

If you would like to know more about this topic, please contact deborah.paracchini@dlapiper.com.