Artificial intelligence is no longer a laboratory topic but an operational reality within the luxury industry.
Generative AI tools are already being used to design fashion pieces, formulate fragrances, develop jewellery and even create entire visual campaigns, with results that, in many cases, rival those produced by human creative teams. For luxury brands operating in Brazil, this transformation brings opportunities but also raises legal issues that the Brazilian legal framework has yet to address satisfactorily.
What does AI create and who owns it?
Brazilian Copyright Law (Law No. 9,610/1998) conditions copyright protection upon the existence of a “creation of the spirit”, an expression which the prevailing legal doctrine still associates with human authorship. In this context, works generated autonomously by AI systems, without relevant creative intervention by a natural person, fall within a regulatory vacuum: there is no identifiable author and, consequently, arguably no original rights holder.
For luxury brands, this vacuum has immediate practical implications. A handbag design conceived entirely by a generative AI tool could, in theory, be reproduced by third parties without the brand benefiting from the same set of exclusive rights that full copyright protection would otherwise confer. Where protection does exist, it will depend on the nature of the human input involved in the process, and the boundary between what is sufficiently creative to attract protection and what is not remains undefined.
Brazil currently has no specific legislation governing copyright in AI-generated works. Bill No. 2,338/2023, which establishes a general regulatory framework for AI in the country, was approved by the Senate in 2024 and is currently under review by the Chamber of Deputies, but it does not directly address the issue of copyright ownership. This legislative silence is not neutral: it favours the unrestricted circulation of algorithmic creations and makes it more difficult to protect assets which, in the luxury market, are often worth more than the physical products themselves.
Trademarks and industrial designs: available protection
Given the fragility of copyright protection for AI-generated creations, luxury brands operating in Brazil must rely on other layers of protection. Trademark registration, which does not depend on human authorship and applies to distinctive signs, remains the most robust instrument available. Likewise, the registration of industrial designs before the Brazilian Patent and Trademark Office (INPI) provides protection for the ornamental shape of a product, provided the requirements of novelty and originality are met.
However, the issue is primarily one of speed and scale. AI tools enable the generation of hundreds of variations of the same design within minutes. Sophisticated competitors and counterfeiters may use precisely the same tools to create products that resemble, without exactly copying, the appearance of a luxury brand, operating within the margins of what would legally constitute confusion or parasitic appropriation.
AI as an instrument of sophisticated counterfeiting
If AI represents a creative opportunity for legitimate brands, for counterfeiters it represents a qualitative leap in reproduction capabilities. Image analysis and content generation tools are already being used to map the visual elements of luxury products, such as patterns, silhouettes and finishes, and reproduce them with sufficient precision to deceive consumers. The result is not merely the traditional counterfeit product: it is a market of visually sophisticated replicas, produced on an industrial scale, whose differences from the original are becoming increasingly difficult to detect with the naked eye.
In Brazil, where the counterfeit market already generates significant revenues, this phenomenon acquires particular significance. The combination of a substantial consumer market, a well-established informal production chain and growing access to AI tools creates an environment conducive to sophisticated counterfeiting. The available legal response, based on unfair competition, trade dress and injunctive relief actions, remains valid, but requires a degree of speed and evidentiary sophistication that does not always keep pace with the agility of infringers.
Strategic paths for brands
Against this backdrop, luxury brands operating in Brazil should adopt a proactive approach combining different legal and operational instruments. Intellectual property portfolios should be audited and strengthened: trademark, industrial design and copyright registrations, where applicable, must be up to date and adequately cover the elements most exposed to imitation.
In addition, brands should map the risks associated with the internal use of AI tools within the creative process. The lack of clarity regarding ownership of AI-generated outputs may create hidden liabilities, particularly in licensing, franchising or co-branding agreements. Contractually defining who owns the rights over creations developed with the assistance of AI, and to what extent, is a provision that is still absent from most sector agreements, but which will become indispensable in the coming years.
Active market monitoring, including across digital and e-commerce platforms, should incorporate AI-based image analysis tools for the early identification of products that infringe the overall look and feel of brands. Combating algorithmic piracy with algorithms is not a paradox: it is a strategic necessity.
Luxury has always been defined by the ability to create something that cannot easily be replicated. Ensuring that this singularity survives the algorithmic era is now both a legal challenge and a matter of brand identity.
At Stocche Forbes, Thiago Porto Ribeiro and Mateus Lino Ferreira advise Brazilian and international luxury brands, with a focus on business internationalisation, corporate matters, contract drafting and negotiation, copyright matters and design and trademark protection. They can be reached at [email protected] and [email protected].
Felipe Savassi advises domestic and multinational clients on labor and employment matters, including employment contract drafting and review, compensation and benefits structuring, and labor regulatory compliance. He can be reached at [email protected].
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