AI Benefits When Fashion Lacks Copyright Protections

By Kaitlyn Dobbins

Generally, copyright protections do not protect much in the fashion industry.[1] Fashion designers can find copyright protections only for those elements of their work that are a separable pictorial, image, or graphic.[2] Essentially, if the work of art can be conceptually separable (independently recognized) from the piece of clothing, it can be protected.[3] Consequently, design elements like common patterns, common colors, or cuts of fabric will not be protected by copyright law.[4]

Even if these items have qualifying copyright protections, the fair use doctrine allows for creators to use copyrighted work without the permission of owners.[5] If the creators can prove they transformed the content substantially, and are not competing in the same market as a substitute for the work of the original creator, their use is permissible.[6] The use of AI in the fashion industry has added new complexity and raised new questions surrounding the protection of fashion designs.

At this point there is no clear answer whether AI’s broad use of information to generate answers to prompts is infringing on people’s copyrighted information, or if it falls within the fair use doctrine.[7] Currently there are a number of law suits by authors and a photo agency alleging that their intellectual property was used to illegally train AI systems.[8] Furthermore, the New York Times has also filed its own suit alleging copyright infringement of its materials.[9] Despite this litigation however, no general rule has been established.

Additionally, there is a lack of clarity about whether the works produced by AI will garner copyright protection. At this point there is a general understanding that works created solely by AI are not protected by copyright.[10] This is because copyright protections do not extend to works created by non-humans; meaning AI cannot be considered the author of the work it produces because it is a machine.[11] It has been theorized that if what AI created can be separated from what the human author created, copyright protections may be eligible for the human created components.[12] However, this would all depend on how much control or influence the human author had over the final output.[13]

Despite the lack of legal clarity concerning copyright protections for anything produced by AI, it is already being used in a multitude of ways in the fashion industry. At the Fashion Institute of Technology, the students in the design and tech lab are using AI as an analytic tool to perform color trend analysis and analyze trends on social media.[14] Furthermore, it has been used to aggregate data to look at both popular trends in the past and predict future fashion trends.[16] Beyond that, AI can take on the creative aspect of fashion design by producing fashion templates through image recognition and image generation processes.[17] AI was used to create over 80 outfits at a fashion show in Hong Kong.[18]

The use of AI has the potential to add 150 to 275 billion dollars to the fashion industry.[19] Furthermore, the lack of copyright protections for AI generated works and its sources means that it is less likely that its use will become bogged down by litigation. People in the fashion industry already view AI as a value-add tool for their work, and there is no fear that it will be stealing jobs.[20] The lack of legal protections for fashion may allow AI use to flourish and develop for the fashion industry in ways it has not been able to for other industries.




Image Source: 10 Best AI Fashion Designer Tools (March 2024) – Unite.AI

[1] Rachel Kim, How Is Fashion Protected by Copyright Law?, Copyright Alliance (Feb. 10, 2022),

[2]  Id.

[3] Id.

[4]  Id.

[5] Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin, (Feb. 28, 2024),

[6] Edward Moren, Boom in AI prompts a test of Copyright law, N.Y.Times, (Dec. 30, 2023),

[7] Id.

[8] Id.

[9] Id.

[10] Ellen Glover, supra note 5.

[11] Id.

[12] Id.

[13] Id.

[14] Dominic Cadogan, What the future holds for AI in fashion design, Dazed (Sept. 21, 2018),

[15] Id.

[16] Holger Harreis et. al., Generative AI: Unlocking the future of fashion, McKinsey & Company (Mar. 8, 2023),

[17] Joseph Campbell, In Hong Kong, Designers try out new assistant: AI fashion maven AiDA,  Reuters, (Dec. 28, 2022),

[18] Id.

[19] Holger Harreis et. al., supra note 16.

[20] Dominic, supra note 14.