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

A penal notice is unnecessary where a defendant has given a clear voluntary undertaking, the relevant models have been retired, and no evidence establishes a need to notify third parties. Claims pursued to closing submissions and then abandoned may properly be dismissed, provided the order records that they were abandoned and does not suggest adjudication on their merits. Permission to appeal should be granted where a novel and important statutory-construction issue has a real prospect of success or other compelling reasons justify appellate consideration. Permission should be refused where proposed grounds merely challenge supported factual findings or contend that another judge might have reached a different conclusion.

The claimants brought copyright, database-right and trade-mark infringement claims against the defendant in the context of artificial-intelligence models. The defendant abandoned the primary copyright and database-right claims after the evidence and closing submissions. The court also dealt with the form of the order, an application concerning a penal notice, and cross-applications for permission to appeal.

The claimants sought permission to appeal the dismissal of the secondary copyright-infringement claim, raising a novel question concerning the construction of the CDPA and the expression “infringing copy” in relation to an AI model. The defendant sought permission to appeal findings of trade-mark infringement, including factual findings and the identification of the average consumer.

1. Penal notice. A penal notice was unnecessary. The defendant had given a voluntary undertaking and understood its scope. The relevant models had been retired, and no evidence showed that third parties required notice. The inclusion of a penal notice was therefore rejected as unnecessary and potentially inflammatory.
2. Abandoned claims. The primary copyright-infringement and database-right claims were dismissed rather than discontinued. They had been pursued through closing submissions and at substantial expense before being abandoned in light of the evidence. The order was to record expressly that the claims were dismissed in circumstances where they had been fought to closing submissions and then abandoned. That wording was intended to prevent any later suggestion that the court had adjudicated those claims on their merits.
3. Claimants’ appeal. Permission to appeal the dismissal of the secondary copyright-infringement claim was granted on all proposed grounds. The issue involved a pure question of statutory construction concerning the meaning of “infringing copy” under the CDPA in the context of an AI model. It was novel, important and potentially significant for AI models and intangible articles such as software. The issue had a real prospect of success and compelling reasons existed for consideration by the Court of Appeal.
4. Defendant’s appeal. Permission to appeal the trade-mark findings was refused. The proposed challenges to UK-activity findings were challenges to factual conclusions that had been reached after detailed consideration of the evidence and relevant concessions. The arguments concerning watermarks and the average consumer lacked evidential support or sought to impose excessive sophistication on the average consumer. A submission that another judge might interpret evidence differently did not establish a real prospect of success.

The judgment records applications for permission to appeal from findings made in the same proceedings. Permission was granted to the claimants in relation to the secondary copyright-infringement claim and refused to the defendant in relation to trade-mark infringement findings. No lower-court decision is identified.