Briefing: April 21, 2023
Artificial intelligence continues to find inroads into the fashion industry, with Prada unveiling imagery this week that it created with the help of an AI image generator, and e-commerce giant Zalando revealing that it will beta test a fashion assistant powered by ChatGPT with “a selected group of customers by Spring” in furtherance of a larger effort by brands/retailers to use AI to “provide personalized product recommendations, virtual try-ons, chatbots for customer service & predictive analytics for inventory management,” and at the same time, generate media buzz.
The even bigger picture here is the existing – and seemingly, escalating – tension between rights holders and generative AI platform developers, which was best exemplified this week by “Heart on My Sleeve,” a song that was created using AI (at least in part) to mimic the voices of Drake & The Weeknd. The song was ultimately removed from YouTube, Amazon, SoundCloud, Tidal & TikTok – on copyright infringement grounds – following demands from Universal Music Group, the label that represents both Drake and The Weeknd. But before the song was wiped from the web, it garnered an eye-watering amount of views. For example, on TikTok, the video was streamed 15M times over the course of a few days.
Universal has been vocal about its displeasure with music streaming services enabling the upload of songs created by generative AI & stated this week that the fake Drake song “begs the question of which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.”
From a legal POV: These instances are interesting, as they shed light on the gray area at play, and raise questions, including from a cause-of-action perspective. Copyright infringement, while maybe the most-immediately-obvious answer, may not be an answer at all for the likes of Universal & co. After all, songs like “Heart on My Sleeve” – which undoubtedly replicates the famed musicians’ voices & the musical styles they are known for – do not actually copy existing compositions or lyrics in terms of the output leaving little room for infringement allegations.
Note: Claims over generative AI output are distinct from arguments about the training of such AI models using data, including images, song lyrics, etc., that latter of which has also raised eyebrows (and allegations) from an infringement standpoint. The Getty v. Stability AI case is one the watch.
Chances are, right of publicity could be more relevant in the fight against songs like “Heart on My Sleeve,” assuming that an individual’s voice is considered to be an aspect of his/her likeness; the 9th Circuit says that it is, holding in Waits v. Frito-Lay, Inc. in 1992 that “when voice is a sufficient indicia of a celebrity’s identity, the right of publicity protects against its imitation for commercial purposes without the celebrity’s consent.” (In that case, Tom Waits sued the snack food co. and its advertising agency for misappropriation and false endorsement following the broadcast of a radio commercial for Doritos that featured a vocal performance imitating his singing voice.)
A case worth watching: In addition to waging copyright infringement claims, the trio of artists suing Stability AI, Midjourney & DeviantArt for allegedly replicating their “artistic styles” in connection with their AI generators make right-of-publicity claims, as well.
In an indication of what is likely to come, a new reportedly-AI-generated song called “Winters Cold” – another play on Drake’s distinctive singing voice – was uploaded to YouTube this week. It seems that the “whack-a-mole” predicament that has plagued trademark holders for years in connection with their fight against counterfeiters may find itself an additional target: Unwanted AI-generated music uploads.
In Litigation News …
– Brooks v. Skechers – After settling a TM suit last year (see here), Brooks has waged a TM case to stop Skechers from using its “BEAST” TM on running shoes.
– Licea v. Estée Lauder Inc. – Estée Lauder is the newest name on a growing list of co. being hit with class action complaints alleging wiretapping over the use of AI chatbots on e-commerce sites.
– Zara v. Thiliko – This case has come to a close, with the court issuing a permanent injunction in Zara’s favor following a default judgment hearing this week. (The most interesting aspect here, I think, was Zara’s focus on Thiliko’s “socially responsible” marketing, which I dove into in connection with the recent Yurman v. Mejuri settlement.)
– Mercedes v. Levomo – Mercedes has filed an interesting TM infringement & dilution complaint against gaming computer-maker Lenovo, highlighting the “close association of computer software & electronics and the auto industry” in furtherance of its likelihood of confusion claims.
– Lidl v. Tesco – Lidl won a TM lawsuit against Britain’s biggest retailer Tesco in the UK this week. The case centered on their respective uses of a yellow circle on a square blue background.
A note on counterfeits: Amazon announced the launch of its Anti-Counterfeiting Exchange (“ACX”) this week, which it says “allows participating stores to share information about confirmed counterfeiters who attempted to use their services to try to sell counterfeit products.” By sharing info, Amazon states that ACX participants “can identify and stop perpetrators more quickly than they would in the absence of this collaborative data sharing.”
In some deal-making news in the fashion/retail, tech & web3 segments …
– THE LNK closed a $1M seed round to build out its “smart [luxury] marketplace, online aggregator & lead generation platform.”
– Canopy has raised $60M from The Audacious Project to establish production hubs for textile & paper materials.
– Groundlight has raised $10M in a seed round. Its natural language powered computer vision service enables small & mid-sized co., including in the retail segment, to “quickly turn on ML solutions that increase productivity.”
– Coinflow Labs announced the close of a $1.45M pre-seed round. Coinflow offers a payment stack that allows web3 companies to accept traditional payment methods for things, such as buying NFTs with a credit card.
– Lexion has raised $20M in a Series B round, saying, “We’ve proven how award-winning AI & no-code automation can accelerate legal tasks.”
– Nativo has secured $25M in structured capital to scale its platform where advertisers & publishers can distribute brand stories at scale via patented technology that leverages machine learning & AI.
– A number of ESG tracing and auditing platforms – including zNero, SVP & Pivotal – raised new cash this week. More about those rounds here.