Model alleges racial discrimination over AI 'whitewashing' of image

Elii Emeghebo was walking past Peter Jackson's Pitt Street shop in Sydney two years ago, when he did a double take.

The Nigerian-Australian model, who had previously modelled for the brand, noticed an image in the shopfront's window of a man who appeared almost identical to him — except for one important thing.

In an email to his agent, he described the figure as his "white twin".

"My nose was reshaped, my skin tone and my eye colour was significantly lightened and there's some reshaping around my eyebrows and my eye shape to be more Eurocentric and a lot less black," he told ABC News Breakfast.

"It's not a good thing when you go from a shoot, something you're really proud of … and you walk past the shop and see basically you, but without your identity there.

"It was really confronting and really unfair."

Not only does Mr Emeghebo allege the AI image "whitewashed" his features, he also believes he should have been paid for their use because he had only been contracted to shoot images for the brand's digital channels.

Mr Emeghebo is pursuing a complaint against Peter Jackson Australia at the Australian Human Rights Commission, alleging the unauthorised alterations to his image amounted to racial discrimination and offensive behaviour.

Peter Jackson Australia admits using AI to alter Mr Emeghebo's appearance but categorically denies discriminating against him based on his race.

The representative said it had paid Mr Emeghebo in full for the shoot and used his "unaltered images across multiple channels in line with our agreement".

They explained the brand's creative team had later used "AI-assisted tools" to produce a "substantially transformed image" from the original campaign featuring Mr Emeghebo.

"Any suggestion that this process was undertaken because of Mr Emeghebo's race, colour or ethnic origin is categorically denied," the statement said.

Victoria's Young Workers Centre assisted Mr Emeghebo in preparing his discrimination complaint.

Its principal legal officer, Paloma Buhagiar Cole, said it was hard to imagine an alternate reason for the changes to Mr Emeghebo's image.

"Human beings chose to use those particular images and decided the image that is devoid of Elii's identity was the one they wanted to use."

Ms Cole also alleged Mr Emeghebo was entitled to payment for the use of the AI-generated image in the shopfront.

"He had a very specific contract that allowed for specific use … so they haven't actually paid for the use of that image here," she said.

Mr Emeghebo wants to see changes to address the growing influence of artificial intelligence on his industry.

"I'd like to see a bigger change that helps to prevent these sorts of issues from cropping up further with the development of AI, and affecting more models like myself and people of colour," he said.

AI protections for models 'shoehorned' into existing law

Internationally, a number of models have taken action against the unauthorised use of AI to reproduce or alter their likeness.

Popular New Zealand streetwear brand Huffer is facing backlash for using what the brand has described as an AI editing tool in their campaigns, as reported by ABC News Breakfast earlier this month.

In New York, model Francheska Pujols has filed a lawsuit against fashion label Rainbow USA alleging they used AI to generate synthetic images of her without her consent.

With AI use exploding worldwide, University of Melbourne academic and lawyer Jason Bosland said Australia should consider legislating a right for a person to control the use of their image, similar to those in place in several US states.

Without an "image right", he said Australian models currently need to "shoehorn" AI provisions into existing legal protections.

Those could include writing clauses about AI usage into models' contracts or pursuing "misleading or deceptive conduct" claims under consumer law.

"That would require that the model have a reputation in the industry and by using the model's image that creates a misrepresentation to the public that they have consented to or endorsed the brand," Mr Bosland said.