With London Fashion Week rapidly approaching, a record number of industry executives, brand representatives, designers and models are expected to travel to the UK for the event. Alongside the usual backstage buzz is the topical talking point: the emergence of AI-generated models and digitally-cloned "twins" of real models used to appear in campaigns and to sign commercial deals – all without the model needing to leave home.
A growing query from models and their agents over recent months has been whether UK law provides models with control over such digital recreations of their appearance. In other jurisdictions, such as Denmark, these concerns have prompted proposals to provide individuals with intellectual property protection for their own facial features and body.
This article considers the extent to which UK law provides models with control over their digital twins, and whether further protections should be introduced against the use of AI-tools to generate convincing images and videos which mimic the features of a person. It also considers what immigration-related impact, if any, this 'clone control' could have on international models undertaking temporary work in the UK and sponsor compliance obligations for UK model agencies.
Deepfakes and AI clones under UK IP law
Deepfakes are highly realistic images, videos, or audio clips, created by digital technology to realistically replicate an individual's voice or appearance. As we have previously discussed, the UK government has legislated to protect individuals against the creation and sharing of pornographic deepfakes. The recent UK Government Copyright and AI consultation also sought responses on whether further specific legal protections should be introduced to provide individuals with greater control over their personality and likeness, including in commercial contexts.
In the fashion industry, AI technology is being used to create digital 'clones' of models. For example, this year, fashion retailer H&M created 30 digital clones to use in social media posts, created with the permission of the relevant models. Under their agreement, H&M pays the models for the use of the AI-generated images. While models may earn less for jobs performed by their digital clones as compared to an in-person photo shoot, the use of their digital clones potentially allows models to be paid without the need to travel to a location and allows them to take on more jobs. For the fashion businesses, the use of such digital clones reduces production costs and accelerates campaign development.
Image rights and other forms of IP for protecting appearance in the UK
Many countries have specific laws preventing the use of a person's likeness for commercial purposes, including the US, France and Germany, all of which are relatively litigious jurisdictions. In the UK, however, models do not currently benefit from any specific codified or consolidated protections in respect of their image, name or likeness; or for the protection of their AI digital clones. Instead, as we have previously discussed, under English law a model may need to stitch together a patchwork of statutes, common law, IP rights and regulatory protections to prevent the unauthorised use of their likeness.
For example, in some circumstances a model may be able to rely on contractual protections or the law of passing off, provided they can show sufficient reputation and "goodwill" connected with their appearance. In 2015, singer and fashion brand owner, Rihanna, succeeded in a passing off claim against retailer Topshop, who had used her image on a t-shirt without her permission. The Court in that case, however, recognised that clothing featuring images of a celebrity may be sold, so long as the retailer did not misrepresent to consumers that the clothing had been authorised by the celebrity. This type of claim will usually only be successful for well-established models who have sufficient reputation and goodwill in their image; it would be harder to prove for a new or lesser-known model.
Some celebrities have obtained registered trade mark protection for their names or signatures with a view to protecting and exploiting their image. For example, footballer and fashion icon David Beckham has successfully registered his name as a trade mark in relation to a range of goods, including clothing. As we have discussed previously, several fashion models have attempted to register images of their faces as trade marks, but have found it difficult to show that their image has sufficient distinctive character to be registered. The protection of famous faces under EU trade mark law is currently being considered by the EUIPO Grand Board, in a case concerning the image of singer, actor and TV presenter Jan Smit.
The Danish proposal for protecting digital identity rights
Danish Culture Minister Jakob Engel-Schmidt has recently proposed a new law in Denmark to provide every individual with rights over their body, facial features and voice, as a way of protecting their digital identity.
Under the proposal, which is the first of its kind in Europe, the protection of likeness would be treated analogously to a copyright entitlement and incorporated as an amendment to the Danish Copyright Act. The proposal would prevent realistic digitally-generated imitations of a natural person's physical characteristics being made available to the public without that person's consent and would extend for 50 years beyond their death. The proposed law is attentive to the importance of freedom of expression, and includes exceptions to the right for imitations created for satire, parody or social criticism. The proposals are also limited to realistic imitations, which the legislative material notes are those imitations which are capable of causing a risk of confusion with the impersonated person.
By treating the new rights as an extension of copyright law, the proposal would be able to leverage the existing copyright enforcement tools, such as the ability to send takedown requests to online platforms hosting unauthorised digital clones of an individual. The proposal is currently under consultation, but it has cross-party political support and is likely to be adopted in Denmark later this year.
Digital twins under UK immigration law
A model's digital twin can now walk the virtual runway, front a campaign and even fit clothes to size – all without setting foot in the UK. The anticipated rise in the use of digital twins could result in a reduced need for models to undertake modelling work in the UK. We have summarised how it impacts the two most popular immigration routes for this industry.
Sponsored Creative Workers
A high volume of international models enter the UK for temporary work purposes. Most are sponsored under the Temporary Work – Creative Worker visa route. The concept of digital twins is not currently addressed in the Immigration Rules and guidance, highlighting the need for the UK government to assess the issue.
With the appropriate rights protections, the use of digital twins could be of practical benefit to agencies and models alike. In-person castings could be reduced (or in some cases eliminated), pushing down travel and accommodation costs and minimising the scramble to obtain a visa last-minute if a shoot date moves forward.
However, it will be important to remember that a model's physical presence in the UK and the parallel use of their digital twin has the potential to trigger various immigration compliance requirements – for the model as the visa holder, and for the agency as the visa sponsor.
The 14-day rule: Models sponsored under the Creative Worker visa route in the UK are required to undertake a paid UK engagement at least once every 14 days to avoid breaching the conditions of their visa. We need clear rules and guidance to confirm whether the paid use of a digital twin can be counted.
Record-keeping: Sponsors may need to retain clear records for Home Office auditing purposes confirming if a paid engagement was completed by the real model or their digital twin.
Standard Visitors, including Permitted Paid Engagement (PPE)
Models may also be eligible to enter the UK as a Standard Visitor. This is an unsponsored immigration route, and it incorporates the previously distinct PPE route.
It's important to review the model's intended activities in the UK to ensure they meet the requirements for stay as a visitor. This is tricky when thinking about digital twins because, as with the Creative Worker route, the current Immigration Rules and guidance don't cater for them.
Under the Standard Visitor route, a visiting model cannot be paid from a UK source unless an exception applies, such as completing a PPE. It is not currently clear whether a model who allows their digital twin to earn UK-sourced fees while they are in the country would be breaching their immigration conditions unless this has been assessed and declared as a PPE before travel.
The Immigration Rules and guidance may be updated in the future to cover how to use a digital twin compliantly. Until then, consider seeking legal advice at the earliest opportunity. A failure to comply could result in an inadvertent breach of a model's visa conditions and potentially impact future visits.
Where a model authorises the use of their digital twin in the UK while they remain physically outside the UK, UK immigration compliance requirements are not usually triggered.
Conclusion
AI will keep reshaping the industry, but physical presence, creative flair and human relationships still drive fashion week. Models arriving for London Fashion Week cannot yet rely on a single image right in the UK, but must instead weave together protection through contract, passing off and other forms of IP rights. While that patchwork of laws has often been able to protect models in high profile disputes, the limitations of such an approach are becoming more apparent as AI tools make the creation of digital twins effortless. The Danish proposal for the protection of likeness shows one possible legislative path that the UK may consider adopting, although it is unlikely that the UK government will provide such rights in the short term.
From an immigration perspective, it will be necessary to wait for the outcome of the UK Government's stance on rights. This will be one to watch as updates to the Immigration Rules and guidance will probably follow thereafter.
The increasing use of AI-generated models and digital twins may eventually reduce the need for international travel, but for now, physical presence remains essential for many roles - making visa compliance and work permissions as critical as contractual safeguards and protection of likeness.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
