AI generated make-up: another IP dilemma to solve?

A-eye make-up
Photo & artworks credited to Tag Peleg

Kat friend Francesca Mazzi, from Queen Mary University London and Maastricht University, shares her feline musings on the implications of AI-generated make-up for copyright law.

The AI Empire strikes back. Open your Instagram account and you will discover intriguing pictures of Kylie Jenner’s half-painted face accompanied by captions written by Dazed Beauty, which reads: “AI GENERATED MAKE-UP” (see here). 

What does “AI-generated make-up” mean?

Dazed Beauty is a community platform dedicated to “redefining the language and communication of beauty”. The platform was launched by Dazed Media, an independent British media group specializing in fashion (see here). Dazed Beauty uses Beauty_GAN, an artificial intelligence (AI) algorithm written by two design studios (Selam X in Berlin and ART404 in New York City) to create hair and make-up looks without human intervention.

How does the algorithm work? Beauty_GAN is a generative adversarial network (aka “GAN”) that uses machine learning to produce imagery. This type of algorithm is made up of two components that, in effect, train each other. By processing data available online via social media, the first component studies shapes, colors and finishes of make-up and hair as well as human preferences for particular styles. The other component generates images that are then evaluated by the first component of the algorithm. The two components thus form a continuous feedback loop that enables the AI algorithm to learn and improve.

Jenner photographed by D Sannwald,
edited by Beauty_GAN

Here is an example of Kylie Jenner. Jenner was first photographed by Daniel Sannwald in a “nude” [read natural-looking] make-up style. Beauty_GAN subsequently modified the photograph by applying a new make-up style on Jenner’s face.

AI-making make-up follows a series of AI breakthroughs in art. One of the first pop albums ‘composed’ by AI was released in 2017 (see here), while one of the first clothing collections generated by AI was advertised last June 2018 (see here). Also worthy of mention is the range of available AI-created paintings, with the first AI painting having been sold in auction (by Christie’s) in October 2018, going for $432,500 (see here).

What about IP ? 

Copyright sits there, amidst this buzzing swirl of AI creativity, wondering: do I subsist in any of those AI-generated “creations” in general? And, if so, do I exist in AI make-up, in particular?

Picture this scenario: I am the owner of a beauty company and I buy the algorithm that is able to produce so-called “AI generated make-up.” Do I also get some copyright protection in the creations generated by my AI? AI and make-up spell double trouble regarding copyright protection because neither type of creative expression is well settled in law. Further, the interpretation of the law on this question is likely to vary between jurisdictions.

Can AI be considered an author?

Naruto by Naruto

From the perspective of US law, it seems that the author must be human to be recognized as such under copyright. How do we know that? Thanks to Naruto, the macaque that took a ‘selfie’, with the camera of an English photographer in Indonesia. No luck for the Englishman in New York, as the selfie was declared unprotectable by a US court because it was shot by a non-human [see here,  here and here for previous posts on this case]. It follows from this interpretation of the law that no copyright would likely be found in AI-generated works in the US, as the technology and the law currently stand.

What about Europe? Considering the traditional focus on the mythical figure of the author in civil law countries, it would be reasonable to assume that a European court would be unlikely to recognize copyright protection where there is no human involved.

However, countries with a common law tradition may take us down a different path. In the UK, for example, the Copyright, Designs and Patents Act 1988 (CDPA) provides that the person who makes the necessary arrangements for computer-generated works shall be the one who receives protection for it (see Section 9(3)). Having said that, it should be stressed that this provision was added in 1988, when AI technology was far from being able to produce creative works with the degree of autonomy it enjoys today, and therefore it should not be taken for granted that AI generated works might nevertheless fall within such category.

Is make-up copyrightable or not?

In the UK, the High Court ruled in the Adam Ant case that “[f]acial make-up was not a painting within section 3 of the Copyright Act” [referring here to the 1956 Copyright Act, which was subsequently repealed and replaced by Section 4 of the CDPA] (see Merchandising Corporation of America v Harpbond [1983] FSR 32). The court held that –

 “[p]ainting” was not defined in the Act but was a word in the ordinary usage of the English language”, adding that “[i]t was a question of fact in any particular case whether what was being considered was or was not a painting (at 33).

In this case, the “surface” played a critical role in assessing whether facial make-up could be a “painting” within the meaning of copyright law. The court explained: 

a painting must be on a surface. If there were a painting in this case it must be the make-up marks plus the second plaintiff's face. If the marks were taken off the face, there could not be a painting. (at 33) 

The court also suggested that if the design of facial make-up was drawn on paper, then it may receive copyright protection as a “sketch” or a “drawing”, but then, of course, the issue of the “surface” discussed above is resolved. 

Adam Ant wearing his
"Prince Charming" look & make-up

Other jurisdictions adopting an open approach towards what may constitute a ‘copyright work’ are also likely to extend copyright protection to make-up. Taking the example of France, such an interpretation of copyright law would be facilitated by the fact that: (a) the French Intellectual Property Code does not require that a creative work fit within a pre-defined category of protectable work, such as a painting (unlike the UK), so a court there would not be put in the position of debating the existence of an appropriate “surface” in facial make-up; and (b) fixation is not required for a copyright work to be protected.

Recent developments in Argentinian jurisprudence would also suggest that copyright protection for make-up work may be on the horizon. In 2011, a court there dealt with a case where the publisher of a magazine had named the wrong person in the credits for the make-up work (see, Judicial resolution "Expte. N° 93.864/2011. "M., M. d. C. c/ H., A. R. s/ daños y perjuicios". Juzgado N° 28, here).

Cat "beautified"
via SnapChat

In first instance, the court considered that the make-up styling at hand was not sufficiently original to be protected by copyright. On appeal, the court affirmed this interpretation of the law, but recognized that the make-up artist had suffered moral and economic (“lucro cessante”) prejudice for not being credited for his work. The court of appeal noted the business needs of make-up artists in the industry, the value of make-up art in the fashion sector, and artists’ expectations to be credited, in justifying compensation for the absence of attribution. 

It will be interesting to see is this result, akin to the moral right of paternity for a copyright work, will be followed in other jurisdictions.