As previously reported, June this year saw the start of a potentially landmark case for the creative versus the AI industries, when Getty went to trial against Stability AI, an AI company accused of infringing the copyright in Getty images as well as Getty’s and its related “iStock” trade marks, due to its “Stable Diffusion” image-generation AI allegedly training on Getty (watermarked) images and outputting infringing content.  

However in a highly technical judgment (for which Her Ladyship must be applauded for managing, seemingly beyond the abilities of advanced AI itself,  to process and arrange masses of information into cogent form), Mrs Justice Joanna Smith handed down judgment today. Neither trial or the judgment went Getty’s way.

Despite its pleaded case, by trial Getty acknowledged that there was no evidence that Stability AI had been trained within the UK jurisdiction; and in any event some of the prompts alleged to generate allegedly infringing content had been blocked by Stability. Getty therefore abandoned its primary copyright infringement and database claims.

Neither did it persuade the Court that the Stable Diffusion AI model itself could be deemed an “infringing copy” for the purposes of secondary copyright infringement.

That left, mainly, Getty’s claims that some Stability AI-generated imagery infringed its GETTY trade marks, and / or those of its group company, ISTOCK. Even there however, and based on the evidence before the Court, the trade mark infringement claims succeeded only in relation to some images created showing relevant watermarks, using certain versions of Stability AI. However there was no evidence of a single user in the UK generating Getty or iStock-marked images using other models.

Overall therefore, a very limited win for Getty – it did not establish that Stability AI’s model itself infringed its IP rights. However the fact that the case was brought and prosecuted down to trial at all may itself serve as a wider warning shot from the creative to the AI trenches in the ongoing battle between the two.

The judgment itself is worth a read for any student or practitioner of IP in the UK, since it traverses numerous relevant points of copyright and trade mark law, closely applying them to the facts, and clarifies new some principles – including that for the purposes of secondary infringement under the Copyright, Designs and Copyright Act 1988, a relevant “article” storing an infringing copy need not be physical in nature and can include cloud copies or copies stored on other intangible media… common today, but no so much back in 1988.

A copy of the judgment can be viewed at https://www.judiciary.uk/judgments/getty-images-and-others-v-stability-ai/.