Below, drawing on the closing submissions both companies made to the court and ahead of what is a highly anticipated ruling by the court in the months ahead, we look at the copyright claims Getty continues to assert – having recently decided to drop its main copyright claims – and explain why the way in which the court answers the legal questions those claims raise could have significant commercial implications.
A summary of the case so far
In 2023, Getty commenced legal proceedings before the High Court over Stability AI’s Stable Diffusion system, which automatically generates images based on text or image prompts input by users. Getty claimed Stability AI was responsible for infringing a range of its UK intellectual property rights. Stability AI rejected the claims. It tried – and failed – to have some of Getty’s claims thrown out at pre-trial stage. The case moved to trial, with hearings taking place in June.
The main claims Getty raised were of infringement under UK copyright law, on the basis of alleged unauthorised use of its photographs in the training and development of Stable Diffusion and in the output that system produced. Getty dropped these copyright claims recently, hinting at challenges in proving that the infringing acts had taken place in the UK and therefore within the scope of a UK court’s jurisdiction. Getty has not ruled out bringing those claims in another jurisdiction.
However, before the High Court of England and Wales, Getty continues to claim Stability AI is liable for secondary copyright infringement, trade mark infringement, as well as for ‘passing off’. Stability AI continues to defend those claims.
The law on secondary copyright infringement
The concept of secondary copyright infringement is provided for in UK copyright law. It is separate to provisions that address acts of primary infringement, such as unauthorised copying or communication to the public, and instead focuses on secondary acts, such as importing, marketing, selling and distributing.
Getty’s secondary copyright infringement claims have been brought under sections 22, 23(a) and 23(b) of the Copyright, Designs and Patents Act 1988 (CDPA).
Under section 22, copyright infringement is said to occur 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 a copyright work.
Sections 23(a) and 23(b) provide that copyright infringement occurs where a person, without a requisite licence, either possesses in the course of a business, or sells or lets for hire, or offers or exposes for sale or hire, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.
The arguments advanced by Getty and Stability AI
For Getty to succeed with its secondary copyright infringement claims, it needs to convince the High Court of three things – that:
Stable Diffusion was either imported into the UK or possessed, sold, let, hired, or offered or exposed for sale or hire, by Stability AI;
Stable Diffusion is both an ‘article’ and an ‘infringing copy’; and
Stability AI knew or had reasons to believe that Stable Diffusion was an infringing copy.
Stability AI contests all three points.
Issues of a factual nature and of a legal nature are in dispute. In particular, however, the question of whether Stable Diffusion constitutes both an ‘article’ and an ‘infringing copy’ raises issues of legal and commercial relevance in the AI age.
AI, other intangibles, and the meaning of ‘article’
It is not in dispute that sections 22 and 23 of the CDPA provide for secondary copyright infringement in respect of physical media – and it is possible to imagine many ways those provisions could be triggered in that context. For example, they could be said to apply where a UK author has written words protected by copyright which are plagiarised by another author, if that other author publishes a book containing the words in another country and then seeks to sell those books in the UK.
In this case, Getty argues that Stability AI is liable for secondary copyright infringement because its AI system produces infringing copies of its works.
Getty’s argument first hinges on it being able to convince the High Court that the Stable Diffusion AI system constitutes an ‘article’ for the purposes of applying sections 22 and/or 23 of the CDPA.
On this point, Stability AI claims the legal position is cut and dried – “on its natural and ordinary meaning, [‘article’] is a reference to a tangible object”.
Referencing section 22 of the CDPA, Stability AI said the idea of ‘importing’ an article involves physical transportation and that the concept should not be “unnaturally extended to cross-border transmissions of information over the internet or otherwise”.
In relation to the section 23 provisions, it said the requirement for an article to be ‘possessed’ is instructive – “possession denotes physical control over a tangible object of some kind”, it said, adding that case law makes clear that intangible information cannot be ‘possessed’.
By contrast, Getty said “it would make a mockery of the law of copyright if [the concept of ‘article’] were inapplicable to intangible copies”. It claims the wording of the legislation itself, the ways in which the meaning of statutory provisions should be unpicked, and the principle that legislation can be applied in contexts not contemplated at the time it was drafted, all support its arguments.
Stable Diffusion, the USB analogy, and the meaning of ‘infringing copy’
Even if Getty is successful in arguing that Stable Diffusion qualifies as an ‘article’ for the purposes of sections 22 and 23 of the CDPA, it must also prove that the AI system fits within the definition of ‘infringing copy’ under the legislation. Getty’s case is that Stable Diffusion fits within how ‘infringing copy’ is defined under section 27(3) of the CDPA.
Section 27(3) provides that an article constitutes an ‘infringing copy’ if it has been or is proposed to be imported into the UK, and its making in the UK would have constituted an infringement of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work.
Stability AI has said that the way Stable Diffusion operates does not fit with how section 27(3) applies. The essence of its argument is that even if a court found that it had trained Stable Diffusion using infringing copies of Getty’s images and that it was possible for a user to generate infringing output from Stable Diffusion, because the infringing copies are not stored on the Stable Diffusion system at the middle stage, Stable Diffusion cannot constitute an ‘infringing copy’ itself. It said: “The weights and model parameters of the various [Stable Diffusion] model versions are simply far too small to store the visual information in the copyright works.”
Getty has characterised Stability AI’s argument as being that the law requires an ‘article’ to continue to retain a copy or copies of the copyright work. It said that this position is not supported by the wording, context, and purpose of the law, nor by case law.
Stability AI, however, has advanced a range of legal arguments of its own to try to persuade the High Court that Getty’s interpretation of the law is wrong, including looking at the context for, and some of the specific working of, the legislation, as well as the legislative history and case law. It said the position in respect of Stable Diffusion is analogous to a USB stick manufactured with built-in song files and earmarked for distribution in the US but later sold as a blank USB in the UK where a different party held rights in the song. Getty said the analogy is “wrong and obviously so”.
Getty said: “[In this hypothetical scenario] the act of making the blank memory stick involved deleting the song files and so was not an act of copying that would have infringed any copyright if undertaken in the UK. By contrast, the act of making Stable Diffusion involves copying because it involves training the model weights on copies of copyright works.”
Opening skeleton arguments Getty put to the court shed further light on this line of argument. It said: “In this case, the thing (the AI model) the making of which involved infringement remains the same when it is imported into the UK… For present purposes what matters is that to train an AI model such as Stable Diffusion there needs to be repeated exposure of the model weights to the training data (i.e. the images), which involves storage of the images both locally and in cloud computing resources.”
Stability AI said Getty’s attempt to distinguish the USB analogy from the position relating to Stable Diffusion is “contrived and unconvincing”, adding that if Getty’s arguments are accepted it would mean something could be an infringing copy “even when it is no longer a copy at all”.
Why the court’s ruling on these issues matters
The Getty Images v Stability AI case is being watched with interest by businesses in both the creative industries and AI sector. This is because the High Court’s ruling could either pave the way for other rights holders to successfully assert copyright claims against AI developers in the UK or close the door on other potential claims.
Some of the difficulties UK rights holders might face in successfully raising copyright claims in the UK were highlighted by Getty’s decision to drop its main copyright claims in this case. According to its closing submissions, Getty continues to believe that the evidence supports its claims of infringement of its UK copyright works, but it said the evidence gathered in the course of the proceedings shows only that the acts of infringement “occurred outside the jurisdiction, including in Dubai”.
UK copyright law is not extra-territorial – it requires the acts of infringement alleged to have been undertaken in the UK if UK copyright law is to be relied on for enforcement of copyright in relation to those acts. In a commercial environment where much of the AI training and development in the world takes place outside of the UK, it presents a clear barrier to bringing primary copyright infringement claims in the UK.
This is why the secondary copyright infringement claims in the Getty Images v Stability AI case are so significant.
If Getty is successful in arguing that an AI system can fall within the definition of ‘article’ – and that such a system does not need to locally store copyright works it was trained on to be said to be an ‘infringing copy’ of those works – then it could give other rights holders a route to enforce their UK copyright before the UK courts, even if the alleged acts of infringement have taken place outside of the UK.
If Stability AI is successful with its legal arguments on those points, it would leave many UK copyright holders with no practical means to enforce their rights under UK copyright law in cases where the alleged acts of infringement took place outside the UK. This is because, to enforce UK copyright, rights holders would have to raise proceedings in other jurisdictions – something which is likely to be prohibitively expensive for small media companies and many independent artists, authors and musicians, in particular.
For rights holders with deep enough pockets, the option of enforcing UK copyright law in the courts of other countries would depend on the operation of international conventions and agreements.
Most countries in the world, for example, are signatories of the Berne Convention, which provides for the protection of literary and artistic works. It means those countries have a copyright regime of some sort that provides for such protection. To help rights holders enforce their rights in relation to extra-territorial infringement, many countries have entered into bilateral or multilateral agreements that provide scope for national rights of copyright applicable in one country to be enforced before the local courts in another. This addresses the risk that alleged acts of infringement falling outside the scope of national copyright frameworks cannot be enforced against.
In its closing submissions, Getty said it will “consider the options available to it” in the other jurisdictions where it says there is evidence of acts of infringement of its UK copyright works by Stability AI.
More generally, if the High Court rules that the secondary copyright infringement provisions in the CDPA do not extend to AI, it could have a bearing on where some AI developers choose to undertake training and development activities.
While the UK government has made a major play at attracting investment into AI development in the UK, through regulatory and planning reforms, among other policy levers, it is in a global competition with others – including the US and EU, as well as countries like the Kingdom of Saudi Arabia. The option to de-risk operations from a copyright perspective by setting up in countries that either do not adhere to international copyright conventions or which have not signed-up to cross-border arrangements on copyright enforcement, could be attractive to some AI developers.
A post-script on cloud business models
One of the arguments that Getty has raised in its case against Stability AI is that Stable Diffusion falls subject to the secondary copyright infringement provisions based on the way it was made available to UK users. Stability AI rejects this. The arguments on the points, according to Stability AI at least, have potentially wide consequences for business models operated by cloud service providers.
Getty says Stability AI made Stable Diffusion available in the UK in two ways – for download via platforms such as Hugging Face and GitHub, as well as via services Stability AI provided on its own DreamStudio platform. These methods, it claims, satisfy the requirements around importation to the UK, under section 22 of the CDPA, and/or ‘possession’ under section 23(a) of the CDPA, as described in more detail above.
Stability AI said the versions of Stable Diffusion at issue were not available to download via Hugging Face or GitHub. It further submitted that “no importation or even transfer of any copy of Stable Diffusion to the UK” was involved via DreamStudio. This, it said, is because “DreamStudio is a hosted service that is provided from servers located outside the UK”.
Stability AI added: “Although a user may send prompts to [Stable Diffusion] models via DreamStudio from a device in the UK, the models remain overseas, where inference and output synthesis will take place. No copy of the [Stable Diffusion] models is ever provided to the user.”
Stability AI has called on the High Court to consider the “wider consequences” of the arguments Getty has raised on the DreamStudio point.
It said: “The software-as-a-service business model is now commonplace: instead of selling a copy of the software, software developers now commonly host their software on a server and provide the relevant services remotely to their users. Many AI-based services (indeed, almost all) are provided through such means. The DreamStudio service is an AI software-as-a-service. On Getty’s arguments, these services will inevitably engage the secondary infringement provisions of the CDPA, with very significant implications for businesses in the software and AI spheres.”
A ruling to follow
The secondary copyright infringement claims are only some of the claims remaining to be resolved in the case. Getty continues to assert that Stability AI is liable for trade mark infringement and for ‘passing off’ too. Stability AI rejects the claims.
Pinsent Masons understands that a judgment in the case is not likely until after summer.