The High Court of England and Wales has recently permitted to proceed to trial claims brought by Getty Images for infringement of intellectual property rights through the training and operation of a generative artificial intelligence (AI) model, in Getty Images (US) Inc & Ors v Stability AI Ltd [2023] EWHC 3090 (Ch).

The case presents an opportunity for the court to demonstrate how intellectual property law will be enforced against people and legal entities behind AI that learns by processing information, and uses that learning, irrespective of any underlying intellectual property (IP) rights protecting the source information.

Claims for infringement of intellectual property brought by Getty Images

Stability AI's deep learning AI, named "Stable Diffusion", is alleged to have been trained on millions of images from Getty Images websites, for which Getty holds the copyright. The training and development process, the returning to users in the UK of synthetic images in response to a user's request, and the importation of Stability AI's software into the UK, are said to infringe Getty's copyright.

The output is also said to infringe Getty's trademarks to the extent the synthetic images bear those marks.

Getty has also made claims for infringement of its database right and for passing off in respect of Stability AI. While the claims are legally distinct, there is some overlap in the concepts involved in the copyright and trademark infringement claims.

Interim dispute about whether aspects of Getty's case should proceed to trial

Stability AI sought to dispose of, before trial, some of Getty's claims. It asked the court for (reverse) "summary judgment" in its favour, alternatively for the allegations concerned to be "struck out". Getty resisted Stability AI's application and asked the court for permission to amend its case to expand its infringement complaint.

On 1 December 2023, Mrs Justice Joanna Smith refused Stability AI's request. Stability AI had brought its application on the basis that the training and development of Stability Diffusion took place entirely in the United States (where Getty has brought proceedings too), and so Getty's claim for infringement of UK copyright in the course of that process was bound to fail. However, Joanna Smith J looked in some depth at the evidence before the court, and concluded that it did not meet the standard necessary for summary judgment or strike out in the situation presented. The standard necessary for that purpose was not the 'balance of probabilities' (which would apply at trial), but of there being "no real prospect" of Getty being able, at trial, to (i) refute the evidence presented by Stability AI and (ii) (in view of Getty's pleaded case) establish on balance that there were grounds for inferring that during training and development, copyright works were downloaded on servers and/or computers in the UK. Getty was able to point to discrepancies between some of the evidence submitted by Stability AI that raised the prospect of the claim being successful at trial pending further disclosure and witness evidence.

A further claim for infringement made by Getty, of infringement by the operation of Stability Diffusion, was also allowed to proceed to trial. This claim for 'secondary infringement of copyright', by the importation of pre-trained Stable Diffusion software into the UK, was made on the basis that the software is an 'article' for the purposes of the relevant sections of the Copyright, Designs and Patents Act 1988. There is no relevant statutory definition of 'article' and the arguments raised a novel question, not previously determined. Therefore, the judge's conclusion was that it would be "unsafe" to decide a new question of statutory construction without a full trial and once all the facts had been ascertained.

Getty sought permission to amend its case to include claims for infringement of copyright and database right by the operation of Stability Diffusion's image-to-image feature. Stability AI resisted the move, apparently indicating that any liability would more properly lie with a user who ends up bringing about the returned image. Joanna Smith J disagreed. Observing that Stability AI's submissions tacitly admitted that it had at least something to do with the creation of the output image (i.e. that it was not a mere host of the data), and that resolution of the issue would need detailed evidence as to the working of the software, she said that at the present stage it could not be determined that the new claim had no prospect of success. Further, the analysis placed the claim about the image-to-image feature in similar territory to the text-to-image claim which was proceeding to trial. Getty was therefore given the permission it sought.

Consequently, all the claims brought by Getty, including those added pursuant to its amendment application, look set to proceed to trial.

Adequacy of intellectual property laws for AI fact contexts being tested

Rapid advances in commercially available AI are presenting new fact patterns for the application of long-standing intellectual property laws. Inevitably, questions are now being put to the court as to how legislation should be interpreted in light of the development of new technologies.

The availability and enforcement of meaningful protection for human innovation, creativity and enterprise has underpinned economic development in the UK for hundreds of years. It is essential to the UK economy that this protection is maintained, but careful consideration needs to be given to the implications of any judgments on these issues, as those decisions are likely to have a wider impact than the facts of the current case. By way of example, the English courts will now test whether it is appropriate to address questions on infringement of national rights such as copyright, and acts that take place in the cloud and across borders.

Will long-standing IP law prove adequate to the task of continuing this support into the AI present/future? There is reason to think so.

To discuss any of the points raised in this article, contact Khemi Salhan or Ailsa Carter.