Nassia Matsa, Jade McSorely and Shereen Wu are models whose images have been altered using generative AI and their tales taught us important lessons on AI bias, misappropriation, hallucinations and more.

Is it legal to use an image of a naturally beautiful model, painstakingly trained, styled, made up, clothed and adorned, without their consent, as a prompt to generate an adjusted AI output, and then use that altered image as a springboard to compete with the same model for exposure on a social media platform?

RELATED: IP Law Trends in 2024 and Beyond

In the case of Ms Wu, Michael Costello engaged her services to model his clothing designs on the runway in exchange, not for payment, but for exposure and experience. Our thespian friends refer to this form of compensation as “exposure bucks”. We don’t know what Ms Wu’s contract said or whether she even had one, but according to Ms Wu, she didn’t agree to the alteration of her image nor for the altered image to be used to compete with her for exposure on Mr Costello’s Instagram platform, which is what happened.

AI Really Does Hallucinate

We know that AI has no consciousness or human understanding and is prone to generate fabrication (or “hallucinations” in AI parlance), inaccuracies, errors, AI bias, discrimination, and non-unique outputs, while appearing “real”. They may also generate outputs that that are defamatory, prejudicial, offensive, or illegal, or which may have the effect of causing embarrassment, injury or an infringement of rights.

In the case of Shereen Wu, her image was altered to substitute her head with the head of what appears to be a Caucasian woman. In a Tik Tok video, Ms Wu says “editing my face and removing my race is completely disrespectful“, implying Ms Wu is also aware that there is a serious form of AI bias in the alteration.

Photographs Really Are Protected Under Copyright Law

Under our copyright law, there is a distinction between the author (essentially the creator, and in the case of a photograph, the person responsible for the composition of the photograph) of the protected work and the owner of the work, and they may not be the same person.

The owner of the copyright in the photograph has the exclusive right to make an adaptation of the work, so unauthorised adaptations, like substituting the subject’s head in a photograph, are unlawful. Typically, adaptation rights are granted in exchange for consideration in the form of a royalty.

The person responsible for the composition of the photograph has “moral rights” in that photograph. These rights are the right to claim authorship of the work and the right to object to what the author, in their subjective opinion, regards as the derogatory treatment of the work. The author may regard the “editing of face and race” as the derogatory treatment of the photograph and demand that infringing copies of the photograph be removed from circulation.

Be Careful of Exposure Bucks

Under our law, modelling on a runway in a fashion show may constitute the performance of a choreographic work or entertainment in the form of gesture or mime and as such would be a protected performance under the Performers’ Protection Act, 1967. A photograph of a model modelling that is published for commercial purposes cannot, under our law, be distributed on the internet or on social media platforms, without payment of a royalty to the performer, and “exposure bucks” may simply not cut it. The model’s terms of engagement would need to be scrutinised, particularly, the usage rights in respect of the performance.

In their respective capacities as model and designer, Ms Wu and Mr Costello are not competitors, so Ms couldn’t argue that Mr Costello is a trade rival misappropriating her product. However, Ms Wu’s complaint is about exposure on Mr Costello’s Instagram platform which has 1.7 million followers. Ms Wu and Mr Costello were competing for exposure on that platform. Arguably, the altered image parasitically reaped from Ms Wu’s own constructive effort and performance. In this way might this be a novel case of direct adoption of a rival’s performance in the “exposure” trade?