ASOS recently announced that it was trialling an augmented reality dress fit tool that would enable customers to see how items would look on a variety of different sized models.

Developed in partnership with augmented reality company Zeekit, See My Fit allows customers to make more informed decisions by showing how products look on different body shapes.  Customers can view one of the 800 dresses on a range of 16 models in sizes 4 – 18.  ASOS states that this feature has been developed because it recognises the diversity in its customers.

ASOS is known for its tailored solutions, already enabling customers to save their height and weight in order to provide a recommended size. It has also used the machine learning Fit Assistance to deliver personalised sizing recommendations in 2018.  In 2019, ASOS tested Virtual Catwalk which allowed shoppers to see models as if walking around the same room.

These developments and increased use of augmented reality provide users with a tailored approach to shopping and fashion brands are certain to take note, but they also pose some interesting legal issues, particularly related to intellectual property.  Zeekit states that it has patented the technology behind See My Fit, but there are copyright issues relating to the digital products and questions around whether this technology would fit within existing advertising rules (should it ever be used for adverts).

Firstly, it is important to distinguish between Virtual Reality (VR) which is a computer generated representation of real life or virtual world replacing the real life experiences of vision and sound with an artificial version. Augmented Reality (AR) contains computer generated representations but does not seek to replace the real life experience, but rather overlay real life with a computer generated image or object.

Under English law, the underlying computer code for AR apps, provided it is original, will quality for copyright protection as a literary work.  A more interesting IP question relates to the virtual products and the images which contain the virtual products and the models. Digital designs are not new and can be valuable.  The fabricant sold a one-of-a-kind virtual design for $9,500 in May 2019 at a Blockchain conference.

A virtual product will most likely benefit from copyright protection as it will most likely constitute a digital image (this again is subject to the originality requirement).  The images that are fed into the machine learning computer programme are likely to benefit from protection.  It is when these images overlay another image that issues can arise. Any creation which involves a computer programme and an individual raises the possibility of joint authorship.

These issues become more pertinent when content is user-generated.  Authorship requires an authorial contribution.  If users are able to take a photo of themselves wearing the virtual product, copyright would most likely subsist in the photo but the author or authors of the image could well be the individual who took the photo and the copyright holder of the virtual dress which overlays the image.

If this AR technology was rolled out to an app so that customers could try it on themselves, there could be issues related to the moral rights copyright owners have, including the right to object to derogatory treatment of the work.

An obvious extension of AR is for influencers to use the technology to showcase clothing ranges without actually wearing them.  Posts on Instagram, snapchat and Facebook would again raise questions of authorship and ownership but these could be addressed in an influencer agreement. A greater issue is whether an ad featuring augmented reality would be considered to mislead the consumer.

Virtual influencers already exist, but a real life influencer using AR to promote a product would be a development.  It would be interesting to see how this would fit within current advertising rules.  Would the ASA decide that factual comments, such as “I love the look of…” be allowed.  Perhaps, more likely to fall foul would be non-factual comments, such as “I love the feel/ fit of…”.  This is untested ground.  The ASA has dealt with advertising in AR environments, but not yet the issue of an influencer wearing an AR item of clothing.    The use of AR promises to be a feature of 2020 fashion tech developments and it remains to be seen how intellectual property law will manage any sort of infringement.  Last year Youtube rolled out a virtual try it on feature for products including lipstick and Apple and Amazon have invested heavily in the technology.  Furniture brands are using AR to show how items would look in living rooms and there are AR apps showing animals, not unlike Pokémon Go.  These developments show how static advertising is declining with AR being a more personalised experience and a new way for consumers to interact with brands.