It is no secret that the world of fashion is full of surprises. On Monday, June 4, 2018, Kim Kardashian West won the Council of Fashion Designer of America (“CFDA”) first-time Influencer Award and commented: “I’m kind of shocked I’m winning a fashion award when I’m naked most of the time.” Fashion advertising and marketing rely more and more upon social media and influencers for the ability to connect with consumers in an authentic manner. As a result, fashion models and celebrity influencers are in high demand. Now, a new group of unique model influencers are taking the fashion world by storm. Yet, it is unlikely that any of these new influencers will ever win the CFDA Influencer Award.
Miquela Sousa, also known as “Lil Miquela,” is from Los Angeles, California. She has more than one million Instagram followers. She is a singer, songwriter and model and can be seen on Instagram, Facebook, Twitter and Tumblr partying in Los Angeles clubs, attending art gallery openings, wearing designer clothes and, of course, posting selfies. In August 2017, she successfully released her first single “Not Mine” on Spotify, which now has nearly 1.5 million plays. She has collaborated with such brands as Stussy, Vans, Born x Raised, Balmain, Pat McGrath and Tesla. She has used her position as an influencer and extensive following to support numerous causes, including Black Lives Matter, transgender rights, gun control, feminism, Planned Parenthood and protests of the Dakota Access Pipeline. She looks, writes, and acts like a real person but she is a computer generated image (“CGI”).
If you scroll through her Instagram account, @lilmiquela, this conclusion may not be obvious. Miquela was digitally actuated by Trevor McFedries and Sosa Decou at Brud in 2016. Miquela launched Prada’s GIFs, in a partnership with both Prada and Giphy, and dons garments made by Diesel and Moncler in her Instagram posts.
Shudu Gram (@shudu.gram) is an African model who has gained the attention of many instagrammers and has accumulated over one hundred thirty thousand followers in a short period of time. On February 8, 2018, Fenty Beauty, the beauty brand created by famed singer Rihanna, reposted a picture of Shudu wearing a shade of its foundation 490, causing a frenzy about Shudu and her association with Fenty.
Shudu has been called the world’s first digital supermodel. She was created in April 2017 by twenty-eight-year old British photographer Cameron-James Wilson. Her debut created controversy, especially given the historic lack of black representation in the fashion industry. Mr. Wilson said his biggest influence in creating Shudu “was a special-edition Princess of South Africa Barbie doll.” Reporters also commented that they believed that Shudu was a living person. To complicate matters, digital models such as Lil Miquela and Shudu also have been featured in social media posts with live celebrities and models. Other CGI models also have been used to promote such brands as Dior and Louis Vuitton.
Fashion brands which have chosen these CGI digital models instead of real models to advertise and promote their products save money on producing a fashion shoot at a picturesque location and hiring models, photographers, and stylists by using AI to create the same looks by computer. Aside from the obvious lack of authenticity by displacing supermodels and celebrity influencers, there are potential legal issues that arise in the United States with respect to the use of digital models.
Last year, the FTC updated its Endorsement Guidelines, requiring advertisers and influencers promoting their brands and products to make clear when they have received material consideration to feature or promote a product or brand in social media under a contractual arrangement by using specific hashtags or captions such as # ad or # sponsored. Digitally-created influencers raise the issue of whether virtual influencers are bound by the Guidelines and, if so, who or what entity would the FTC hold responsible for a digital model’s “failure” to make the proper disclosures.” Similar transparency regulations exist for other international jurisdictions.
In addition, if a digital model’s body type is not realistic under human standards, would any advertisement or social media posting featuring the digital model be subject to international standards relating to advertising and body image. Given that the CGI models are advertising apparel and beauty products for actual humans, it would follow that entities such as the ASA in the United Kingdom would regulate these changes.
Further, are these digital models protectable and, if so, who holds the rights to their persona or image? Deciding whether copyright law would treat an avatar or CGI influencer as protectable as a separate “original work of authorship” that is “fixed in a tangible medium” may involve a complicated fact analysis, depending upon the circumstances. That being said, famous copyrighted characters such as Betty Boop and Minnie Mouse can be seen a precursors to Lil Miquela and Shudu Gram from the dawn of the motion picture era.
The impact of the increased use of CGI influencers and models is yet to be determined and questions remain regarding the legal framework that should be applied to their online activities. If your company aims to create or use such a CGI model or influencer, you should follow the Guidelines and provide proper disclosures as if the model was, in fact, human. You also should make sure you protect the intellectual property that is comprised of the model or celebrity. As for other issues that may arise, like you, we will remain abreast of legal developments so we may best advise you on how to protect your fashion designs and advertisements. As this phenomena grows, if it does, courts may provide additional guidance on these issues.
 See https://www.elle.com/culture/celebrities/a21076356/Kim-Kardashian-acceptance-speech-cfda-influencer-award/.
 https://www.forbes.com/sites/forbesagencycouncil/2017/07/28/influencer-marketing-and-the-power-of-data-science/#2cda8a6b79a6; https://www.adweek.com/digital/catherine-claire-guest-post-how-social-media-has-changed-fashion/.
 Miquela’s Instagram and other social media posts often elicit questions from followers as to whether she is real or not. Her recent Instagram posts reflect her confusion with being CGI and in the past she was engaged in a feud with a self-professed robot-rights activist Bermuda (@bermudaisbae), who was also created by Brud. As was reported in Elle: “The company concocted the entire dramatic, hype-building episode to garner attention.” https://www.elle.com/culture/a21272102/almost-human-july-2018-miquela-shud-profile/.
 Brud is a Los Angeles-based robotics and AI start-up. See https://www.buzzfeednews.com/article/adrianawiddoes/lil-miquela-instagram-hack-brud; https://www.wired.com/story/lil-miquela-digital-humans/.
 https://www.newyorker.com/culture/culture-desk/shudu-gram-is-a-white-mans-digital-projection-of-real-life-black-womanhood. As reported in The New Yorker: “After the Harper’s Bazaar interview, Wilson told me, the tenor of the social-media reactions to Shudu began to change. Shudu’s admirers had included black celebrities such as Michael B. Jordan, Alicia Keys, Tyra Banks, and Naomi Campbell, who has in the past chastised the fashion industry for its historic lack of black representation, saying, of black models, ‘We don’t want to be a trend.’ Now many women of color are criticizing Wilson’s digital supermodel. In a tweet, the British writer Bolu Babalola, citing the social theorist Patricia Hill Collins, called Shudu an image ‘contrived by a white man who has noticed the ‘movement’ of dark-skinned women.’” See also https://fashionista.com/2018/03/computer-generated-models-cultural-appropriation; http://www.revelist.com/makeup/fake-black-model-shudu-cgi/11792; http://www.dazeddigital.com/fashion/article/39654/1/is-lil-miquela-real-cgi-instagram-influencers-shudu-fashion-industry-racism.
 http://www.businessinsider.com/shudu-gram-is-a-fake-instagram-star-2018-5 (“Here’s how I was first taken in by Shudu Gram. In an image posted late last summer, Shudu captioned a photo of herself with an apparent ode to the clothing brand SOULSKY, writing, “I can’t describe how grateful I am to @soulskybrand for sending me this beautiful t-shirt. I hope the picture does it justice ❤”).
 See https://www.newyorker.com/culture/culture-desk/shudu-gram-is-a-white-mans-digital-projection-of-real-life-black-womanhood; http://www.businessinsider.com/shudu-gram-is-a-fake-instagram-star-2018-5.
 For example, Noonoouri was used to promote the Dior Cruise Collection in 2018 and Lightning from the video game, Final Fantasy, was used to promote the Louis Vuitton Spring Summer 2016 Collection. See https://en.vogue.fr/fashion/fashion-inspiration/story/from-lil-miquela-to-shudu-gram-meet-the-virtual-models/1843.
 https://www.fashionapparellawblog.com/2017/04/articles/enforcement-of-fashion-laws/brands-beware-ftc-endorsement-guides/; https://www.fashionapparellawblog.com/2017/07/articles/enforcement-of-fashion-laws/ftc-social-media-influencers/.
 The International Consumer Protection and Enforcement Network is comprised of consumer protection agencies from over sixty countries and has published guidelines developed to help parties comply with truth-in-advertising principles for endorsements for online reviews and endorsements. For example in the United Kingdom, the Competition & Markets Authority sought undertakings from UK advertising agencies that they will not breach consumer protection legislation when working with influencers and the Advertising Standards Authority (“ASA”) and Committee of Advertising Practice has issued guidelines for vloggers.
 For example, the United Kingdom’s Advertising Standards Authority banned a Gucci advertisement where a model’s “torso and arms were quite slender and appeared to be out of proportion with her head and lower body” and “her pose elongated her torso and accentuated her waist so that it appeared to be very small. https://www.asa.org.uk/rulings/guccio-gucci-spa-a15-321743.html#.VwTfz3o3n_Q; see Do We Need A Truth in Advertising Act? The Industry and Retailers Self-regulate Photography Ads. Similar decisions regarding body image involved Yves Saint Laurent SAS and the depiction of a model who appeared unhealthily thin, https://www.asa.org.uk/ratings/yves-saint-laurent-sas-a15-2g2161.html, and an advertisement for swim and summer wear which featured an unhealthily thin model. https://www.asa.org.uk/ru/regs/drop-dead-clothing-ltd-a11-164206.html.
 The ASA held that advertisements featuring a “naughty elf” CGI character in series of posts on Poundland’s Twitter and Facebook page, to promote the #ElfBehavingBad campaign in December 2017, breached CAP Code Rules 1.3 (social responsibility) and 4.1 (harm and offense). See https://www.asa.org.uk/rulings/poundland-ltd-a17-408906.html.
 See, e.g., Tyler T. Ochoa, “Who Owns an Avatar?: Copyright, Creativity, and Virtual Worlds,” 14 Vanderbilt J. of Ent. And Tech. Law 959, 970-73 (2012).
 See Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958, 962 (9th Cir. 2011); Walt Disney Co. v. Powell, 897 F.2d 565, 570 & n.10 (D.C. Cir. 1990).