Getty Images v Stability AI: Impact on UK Copyright & AI Law

Because of the quality of Getty Images’ contents, they are vulnerable to being used  in connection with AI and machine learning. Getty Images’ complaint is that Stability AI has “scraped” millions of images from Getty Images websites, without consent, and has used those images unlawfully to train and develop Stable Diffusion.

Getty Images’ subsequent complaint is that the output from Stable Diffusion in the form of synthetic images, accessed through platforms such as Dream Studio,  in itself amounts to infringement as it reproduces a substantial part of Getty’s content. Getty alleges that Stable Diffusion’s actions amount to:

• importing into the UK an article, namely Stable Diffusion, which is and which the Defendant knows or has reason to believe is, an infringing copy of the copyright works; and/or
• possessing the course of a business, selling or letting for hire, or offering or exposing for sale or hire, an article, namely Stable Diffusion, which is and which the Defendant knows or has reason to believe is, an infringing copy of the copyright works (section 23 Copyright, Designs and Patents Act 1988 (CDPA)).

The synthetic images have also been found to bear various Getty and iStock trademarks appearing as watermarks. Getty has therefore made a claim for copyright infringement, database right infringement, trademark infringement and passing off.

Additionally, following a summary judgment application hearing instigated by Stability AIGetty sought permission to amend the Particulars of Claim by the addition of a new claim relating to an image-to-image feature of Stable Diffusion. This feature permits users to make “essentially identical copies of copyright works” and the user is able to determine how closely the synthetic image produced matches the image prompt through the use of an “image strength” slider allowing variations in the synthetic image created.

Justice Joanna Smith’s view on the location issues is that, based on the limited evidence she had assessed on that point, there is “support for a finding that, on the balance of probabilities, no development or training of Stable Diffusion has taken place in the United Kingdom”. Justice Joanna Smith is however not sufficiently convinced to determine the point without first giving Getty the opportunity to refute the evidence at trial, adding, among other things, that there is some evidence that points away from what Stability AI has argued and that there are reasonable grounds to believe disclosure in the case may add or alter the evidence on where the training and development of Stable Diffusion took place. There is a strong belief however that if the High Court accepts Stability AI’s position, Getty’s claims relating to the training and development will fail on the jurisdictional scope of the CDPA 1988.

The subsequent claim had been said to raise a somewhat novel interpretation of the law which should be delved into at trial, once all facts had been ascertained and considered. In refusing to dismiss Getty’s claim,  Justice Joanna Smith noted Getty’s argument that there are good policy reasons why “article” should be read as meaning both tangible and intangible articles and that on the Defendant’s construction, there would be an infringing copy and secondary infringement if the Defendant had brought a copy of Stable Diffusion into the UK on a memory stick but, because of developments in technology which mean this can now be achieved via a cloud-based service, there would be no infringement.

Despite Stability Ai’s view, Justice Joanna Smith considered that the image-to-image claim as pleaded has a “real prospect of success” and that it is “plainly a claim that should go to trial”, thus allowing the addition of this claim to Getty’s Particulars of Claim.