AI: So, Where's The Stability?

The case

A recent case in the UK, Getty Images US Inc & Others v Stability AI Ltd, has absolutely dominated IP news with Judge Joanna Smith delivering a mammoth judgment of 205 pages.

What was the case about?

The case related to millions of photos and videos owned or licensed by Getty Images, and the claim was that these photos and videos were or had been used unlawfully to train the Stable Diffusion (“AI”) model. 

Given that the court's judgment has already been widely reported, and lawyers and other interested parties have commented on this matter in a great deal of detail, we will focus this article on some of the major aspects of the case.

The trade mark infringement claim

There was evidence that Getty Images' photos and videos were used to train Stability AI's model, which allows users to generate images with text prompts. Getty Images brought trade mark infringement action under sections 10(1), 10(2) and 10(3) of the UK Trade Marks Act (“TMA”).

In respect of section 10(2) of the TMA, the court found that there was a likelihood of confusion because consumers would assume a connection (i.e. some form of licence from the Getty Images' database).

The copyright infringement claim

Getty also filed a claim for secondary copyright infringement. This claim failed, however, with the court holding that an AI model which does not store or reproduce any copyright works (and has never done so) cannot amount to an ‘infringing copy'.

Public reaction to the judgment

There has been a considerable reaction to this highly-publicised court judgment, and below we deal with some of the these.

Insufficient clarity, a win for AI

The UK court's judgment ‘may well be construed as a win for the AI industry as it failed to prohibit many of Stability AI's business practices to which Getty Images objected'.  The judgment ‘highlights how model training can avoid being caught by UK copyright legislation by the defendant undertaking its activities in a different jurisdiction…greater certainty on the extent of and limitations on protection for creative works against unauthorised use by AI companies is much needed.'

Courtesy of UK law firm, Stobbs.

Protecting the copyright framework

‘Rights holders must be able to choose whether or not to authorise AI companies who want to use their works for training… Key to this is protecting the UK's strong copyright framework.'

The British Phonographic Industry (BPI) CEO, Dr Jo Twist.

A damp squib

This case was a ‘massive damp squib'  because Getty dropped its most important claim, giving Judge Smith ‘no opportunity to rule in general terms on the lawfulness of AI's use of copyright protected ‘'input materials'' and whether an AI model's ‘'output'' infringed such copyrights.'

Ian Connor, IP partner at UK law firm, Michelmores.

Exploitation of authorial works

We're told that ‘despite the protection UK copyright purports to offer, Stability have got away with exploiting authorial works for their huge value in training model weights… models trained on infringing data outside of the UK can be imported into the UK without legal repercussions…the UK's secondary copyright regime is not strong enough to protect its creators."

Rebecca Newman, legal director at UK law firm, Addleshaw Goddard.

Watermarks

The High Court ruled that ‘simply training AI on copyright works doesn't breach UK copyright law – unless the model actually stores or reproduces those works. But if AI-generated images copy protected trade marks, like watermarks, there's a real risk of infringement. This case sets an important precedent for both tech and creative industries.' 

Simon Barker, UK law firm, Freeths.

Keep battling

A certain gentleman who is rather well-known for his disdain of modernity has urged ‘critically acclaimed' British author (Japanese-born Sir Kazuo) to ‘keep battling' against AI, which has apparently raided his books to train AI. His Majesty is quoted as follows – it is ‘quite important to keep battling on that front'. 

King Charles…we don't need to tell you where he works!

Finally

We are quite sure that this is not the last we have heard on this case!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.