Getty Images v Stability AI: copyright claims can proceed to trial

Earlier this year, Getty raised legal proceedings against Stability AI before the High Court in London, alleging infringement of its IP rights. The claims relate to Stability AI’s ‘Stable Diffusion’ system, which automatically generates images.

Getty’s claims of infringement concern both how Stability AI has allegedly used its images as data inputs for the purposes of training and developing Stable Diffusion, as well as in respect of the outputs generated by Stable Diffusion, which Getty claims are synthetic images that reproduce in substantial part its copyright works and/or bear Getty brand markings.

Stability AI asked the High Court to strike out two aspects of Getty’s claims so that they would not be considered at a full trial hearing: the training and development claim; and a claim of secondary infringement of copyright Getty has raised that pertains to the availability of Stable Diffusion in the UK.

However, earlier this month High Court judge Mrs Justice Joanna Smith said the legal position in relation to both issues is sufficiently contested and unclear that claims should not be struck out as Stability AI had requested and that they instead should be considered substantively at trial.

In respect of the training and development claim, Mrs Justice Smith said that, as copyright is a territorial right, the core issue arising with this claim is where the training of Stable Diffusion had taken place – if it can be said to have occurred in the UK, Stability AI could be liable for copyright infringement, but if it occurred outside of the UK, then there would be no infringement of copyright under the UK’s Copyright Designs and Patents Act (CDPA) in this jurisdiction.

Both Getty and Stability AI have different views on the “location issue”: the judge said that Getty has inferred that the alleged infringement pertaining to the training and development of Stable Diffusion had occurred on servers and/or computers in the UK, but she also said that Stability AI’s evidence points to the development of Stable Diffusion having taken place in the US.

“I observe that if this were the trial of this action, the evidence to which I have referred above would (on its face) provide strong support for a finding that, on the balance of probabilities, no development or training of Stable Diffusion has taken place in the United Kingdom,” Mrs Justice Smith said. “This is not, however, the trial of this action and if I am to grant summary judgment I must be satisfied that there is no real prospect of [Getty] being able, at trial, to refute this evidence and to establish on balance that there are grounds for the inference that they invite the court to draw … Further, I must be satisfied that there are no reasonable grounds for believing that a fuller investigation into the facts would add to or alter the evidence available to the trial judge and so affect the outcome of the location issue.”

“Having examined with care all the evidence before the court, I am not so satisfied. There seems to me to be (i) evidence potentially pointing away from the factual determination on the Location Issue that I am invited to reach by [Stability AI]; (ii) evidence raising unanswered questions and inconsistencies relevant to that determination; and (iii) reasonable grounds for believing that disclosure may add to or alter the evidence relevant to the question of where the training and development of Stable Diffusion took place. All of this clearly supports the proposition that the training and development claim has a real prospect of success and must be permitted to go to trial. The location issue is certainly not an issue on which I can say at present that [Getty’s] claim is doomed to fail,” she said.

Getty’s secondary infringement claim, the judge said, “really stands or falls” on how the word "article" in sections 22, 23 and 27 of the CDPA should be interpreted – and whether it encompasses making available intangibles like software, online.

Under section 22 of the CDPA, copyright infringement occurs where a person, without a requisite licence, imports into the UK, otherwise than for his private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

Section 23 provides that there has been copyright infringement in similar circumstances where a person possesses in the course of a business, sells or lets for hire, or offers or exposes for sale or hire, in the course of a business exhibits in public or distributes, or distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

The meaning of ‘infringing copy’ is defined in section 27 of the CDPA.

Like with the training and development claim, the judge considered that it would be better to consider the meaning of ‘article’ under the CDPA – and whether it would cover Stable Diffusion being made available in the UK – at trial, rather than make a ruling based on “the necessarily abbreviated and hypothetical basis of pleadings or assumed facts” raised in the summary proceedings.

Mrs Justice Smith also allowed Getty to amend its particulars of claim to allow it to raise a further argument at trial – that Stability AI reproduces the whole or a substantial part of its images where it lets users of Stable Diffusion upload their own Getty-owned image and then request Stable Diffusion generate a synthetic image that is most closely matched to the original image using the system’s ‘image strength’ slider functionality.