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  • Writer's pictureRosie Burbidge

Can Stability AI strike out Getty’s copyright claim?



Smith J recently handed down a judgment in the ongoing litigation between Getty Images and Stability AI regarding the latter’s Stable Diffusion deep learning AI model.


Her decision not to strike out or grant summary judgment on key claims means the case is now headed to a full trial.


Summary of the dispute

Getty alleges that Stability AI has scraped millions of images from Getty’s database without its consent. It says these images, as well as captions and metadata, were used unlawfully to train and develop Stable Diffusion, and that the synthetic images produced also infringe its IP rights.


The claim before the High Court concerns infringement of copyright, database right and trade marks as well as passing off. Parallel proceedings are pending in the US. As we discussed in a previous post, this is one of the first cases to address issues concerning AI and IP infringement.


Stability AI has not yet filed a defence but has made various applications including this one for strike out/summary judgment. Following a two-day hearing, the judge resolved three main questions regarding: (1) training and development, (2) secondary infringement, and (3) the image-to-image feature.


Training and development claim

First, Joanna Smith J declined to grant summary judgment or strike out Getty’s claim of copyright and database right infringement, which was based on the allegation that copyright works were downloaded on servers/computers in the UK in the training and development of Stable Diffusion.


Stability AI argued that without any prima facie evidence that the training and development took place in the UK, this claim was bound to fail. It said that all the relevant work took place in the United States.


However, the judge was not satisfied that this was the case. She said there was evidence pointing the other way (including human and computer resources in the UK), unanswered questions and inconsistencies, and reasonable grounds to believe that disclosure would assist the court. As she noted:

“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 the Claimants' claim is doomed to fail.”

Secondary infringement

The second issue concerned a claim of secondary infringement of copyright arising from the importation of an “article”, namely the pre-trained Stable Diffusion software. This hinges on whether the word “article” in the Copyright, Designs and Patents Act (CDPA) relates only to tangible things or also intangible things such as making available software on a website.


The judge said this question needed to be decided once all the facts have been determined at trial. She noted that it raises a novel question, not previously decided by the courts:


“The question of whether an ‘article’ for the purposes of sections 22 and 23 of the CDPA can include an intangible article, has not to my mind been previously argued in detail or decided by this court. It is not straightforward and it arises in connection with a case of secondary infringement involving internet downloading, which (with the exception of Wheat v Google) has not previously been considered. In my judgment it would be infinitely preferable for the court to make findings of fact as to the precise nature of the acts said to give rise to the secondary infringement (for example precisely how Stable Diffusion has been imported into the UK) before going on to consider the legal question.”

Image-to-image feature

The third issue concerned Getty’s application to amend its claim to cover a new image-to-image feature which enables Stable Diffusion to generate a synthetic image output in response to an image uploaded by a user (either with or without a text prompt).


While the arguments on this point were not fully developed at the hearing, the judge found that the claim as pleaded had a real prospect of success and should go to trial.


What does this mean?

This case, and the parallel proceedings in the US, raise very interesting questions that will affect the future development and commercialisation of AI systems.


The judge’s decision not to strike out the claims or grant summary judgment means that all these issues are set to be heard in a trial in the High Court. This will no doubt be watched closely both in the UK and throughout the world! 


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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