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

A representative claim is available only where the proposed representative and represented persons have the same interest in the claim. The class must be identifiable independently of the outcome of the litigation. A definition that depends on establishing infringement is impermissibly circular.

The court must examine the pleaded claims at a sufficiently granular level to identify common issues and any conflict of interest. A representative claim may be unsuitable where individualised assessments remain necessary, unless a workable bifurcated or sampling process is proposed. The court may refuse permission where the proposed class and trial arrangements are uncertain. Permission to proceed without joinder requires evidence protecting the defendant against subsequent claims.

The claimants brought proceedings concerning alleged copyright, database right and trade mark infringements arising from the defendant’s Stable Diffusion generative AI model. The Sixth Claimant purported to act under CPR r.19.8 as representative of a large class of copyright owners whose works had been exclusively licensed to the First Claimant.

The defendant applied under CPR r.19.8(2) for an order that the Sixth Claimant could not act as representative. The claimants alternatively sought permission under CPR r.19.3(1) and section 102(1) of the Copyright, Designs and Patents Act 1988 to proceed without joining all exclusive licensors. The central issues were whether the proposed class was identifiable, whether its members had a common interest, and whether the claims could be managed fairly and proportionately at trial.

1. Representative claim. The Sixth Claimant was ordered not to act as representative under CPR r.19.8(2). The pleaded class definition depended on whether copyright had been infringed, so membership could not be determined independently of the outcome. The alternative focus on works used to train Stable Diffusion also failed because the works used, and therefore the class members, could not presently be identified.
2. Same interest. The requirement is satisfied by common issues in which the representative and represented persons share an interest. It does not require identical causes of action. However, the court must examine the pleaded claims with sufficient granularity. The text-prompts and image-plus-text-prompts claims depended on specific works and claimants in which the proposed representative had no interest. The claims could not stand or fall on the representatives’ claims.
3. Discretion and case management. Even if jurisdiction existed, permission would be refused in the court’s discretion. There were no satisfactory proposals for identifying the relevant works, sampling and extrapolation, bifurcating individual issues, or managing the claims at the forthcoming trial. That uncertainty was inconsistent with the overriding objective in CPR r.1.1(2).
4. Joinder. Failure under CPR r.19.8 did not automatically preclude permission under CPR r.19.3(1). But the informal application was refused. The claimants had provided no proper evidence that the defendant would be protected from subsequent claims by exclusive licensors. Contractual clauses controlling proceedings were insufficient because the defendant was not party to the agreements, their enforceability could raise foreign-law issues, and the agreements were not uniform.
5. The parties were invited to prepare an order reflecting those decisions. The Sixth Claimant could remain as a claimant in its own right.