Getty Images (US) Inc & Ors v Stability AI Ltd

Summary judgment is inappropriate where material factual disputes remain, disclosure may materially alter the evidence, or a novel legal issue is better resolved after trial. The court must assess the pleaded case together with evidence reasonably expected to be available at trial and must avoid conducting a mini-trial.

In a developing area of law, a claim should not ordinarily be struck out or summarily determined on assumed facts. The meaning of a statutory term such as “article” may require full argument and factual findings, particularly where the issue concerns digital technology and secondary copyright infringement.

The claimants alleged copyright, database right, trade mark infringement and passing off arising from the defendant’s development and distribution of the Stable Diffusion generative AI model. The defendant applied for summary judgment and strike out concerning alleged UK-based training and development, secondary infringement, and certain image-to-image claims. The claimants sought permission to amend their particulars of claim to add the image-to-image case.

The principal issues were whether the training and development claim had a real prospect of success, whether the statutory word “article” in sections 22, 23 and 27 of the Copyright, Designs and Patents Act 1988 was confined to tangible things, and whether the proposed amendments were coherent and realistically arguable.

1. Training and development claim. The summary judgment application was dismissed. Copyright and database rights are territorial, so the Location Issue was material. Although the defendant’s evidence strongly supported the proposition that training occurred outside the UK, contemporaneous material, unexplained AWS transfers to London, questions concerning UK personnel and contractors, uncertainty about the timing and nature of development, and possible earlier computing resources provided reasonable grounds for believing that disclosure could add to or alter the evidence. The claim therefore had a real, rather than fanciful, prospect of success.
2. The court was not required to accept the defendant’s evidence as definitive. The evidence raised conflicts and credibility issues which could not properly be resolved on an application of this kind. The inferential pleading was sufficiently strengthened by the proposed amendments and could proceed to trial.
3. Secondary infringement. The application concerning sections 22, 23 and 27 of the Copyright, Designs and Patents Act 1988 was dismissed. The court declined to decide summarily whether “article” means only a physical tangible thing or may include an intangible item such as software made available through a website. The issue was novel, had not been fully argued, and required factual findings about how Stable Diffusion was imported, possessed, distributed or dealt with. Sony v Ball did not determine tangibility, and limited reasoning in Wheat v Google was not sufficiently supported or binding.
4. Image-to-image amendments. Permission to amend was granted, subject to revisions identifying the sample images, replacing “uploaded” with “entered”, and clarifying “commercial offerings”. The pleaded case that Stable Diffusion ingested, pixelated and used the input image in generating output was realistically arguable. Whether the user or the software performed the legally material acts, and whether communication to the public or authorisation was established, required evidence at trial.
5. The proposed database right claim raised materially similar issues because it relied on re-utilisation by providing access to Stable Diffusion. The amendments were therefore permitted, and the defendant’s applications were dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.