- The Getty Images v. Stability AI trial is a landmark case that highlights significant issues of copyright, trademark, and database right infringement that will impact AI model developers and copyright owners in the UK.
- Stability AI's defense depends on the argument that their actions took place outside the UK and on the applicability of the UK's 'fair dealing' defense for purposes like parody, caricature, or pastiche.
- Getty withdrew several claims, with the main remaining issue being whether Stable Diffusion itself qualifies as an infringing 'article' under UK copyright law.
Getty Images v Stability AI began last month in what is the most significant copyright (and other intellectual property rights) trial in decades, and one which will have an important impact on the UK landscape for both AI model developers and copyright owners. The issues in the case relate to copyright infringement, trademark infringement, passing off and database right infringement.
What is the dispute about?
Getty Images owns an image library which contains millions of images and videos on its websites. The images and videos contain the Getty watermark. The Getty image library is arranged systematically and Getty has invested hundreds of millions of US dollars in their library.
Stability AI developed and launched a deep learning, text-to-image and image-to-image AI model, which it named 'Stable Diffusion'. Stable Diffusion can be used to generate synthetic images in response to text and image commands made by a third-party user. Stable Diffusion was developed by using datasets of images scraped from the internet and which included a large number of images from the Getty library.
Getty claims that around 11 million of its copyright-protected works were used to train Stability Diffusion from around August 2022 and sued Stability for copyright and trademark infringement, passing off and database right infringement in 2023.
Copyright infringement
Getty's main arguments for copyright infringement:
- Inputs: The training of Stable Diffusion by using Getty's copyright works was infringement of its rights in the UK.
- Output: The synthetic outputs created as a result of third-party use of Stable Diffusion infringes Getty's copyright.
- Stable Diffusion itself is an 'infringing copy' of Getty's copyright works as it is an 'article' within the definition of the UK legislation.
Stability's defense claimed that the training of Stable Diffusion took place outside the UK and therefore does not infringe copyright in the UK.
In relation to Getty's claim on outputs, Stability argues that image outputs are acts of independent third parties – the users – and are not acts of Stability. Stability also relies on the 'pastiche' defence in relation to any outputs produced on user commands, which include elements of Getty's copyright works. In UK law there is a 'fair dealing' defence for use of copyright protected works for the purposes of caricature, parody or pastiche. Stability argues that an image is a pastiche if it is in a style that may imitate that of another work, artist or period and that the generation of an image by a user is highly likely to be 'fair dealing'.
Getty makes a novel legal claim in relation to Stable Diffusion being an 'article', that the making of Stable Diffusion would have been an infringement of Getty's copyright and that Stable Diffusion itself is an infringing copy. Stability's defence states that Stable Diffusion is not an 'article', that it is intangible information.
This aspect of the dispute will see the court grappling with questions on the interpretation of the current legislation drafted at a time when AI models were not in contemplation. The court's determination of this issue will have a huge impact on incentives for AI model developers to offer their products in the UK.
Towards the end of the trial, it was reported that Getty dropped is 'Input' and 'Output' copyright claims, which leaves only one issue for the judge to determine on copyright, and that is whether Stable Diffusion is itself an 'article'.
Trademark infringement and passing off
Getty's trademark infringement claim is that the output images generated by Stable Diffusion sometimes included the Getty watermark. Stability argues that the watermark examples produced by Getty in their claim were 'contrived' and not real life examples and that even if the watermark bearing the Getty image appeared, that it was not in the course of trade.
The principle underlying rights in passing off is that "A man is not to sell his own goods under the pretence that they are the goods of another man". Getty argues that the output image bearing the Getty watermark is passing off. Stability claims that there is no misrepresentation, no damage to Getty's goodwill, therefore no passing off.
Database right infringement
The database right is a sui generis intellectual property right which subsists in a collection of independent works, data or other materials arranged in a systematic way. It subsists if the maker of the database has made a 'substantial investment' in obtaining, verifying or presenting its contents.
Getty claims that Stability has 'extracted' a substantial part of its database of images in the creation of Stable Diffusion which is an infringement of Getty's database right. Stability relies on the argument that Stable Diffusion was trained outside the UK.
One feature of the database right, pre-Brexit is that it is only available to individuals who are nationals of or resident in EEA member states and companies that are incorporated in EEA member states. The UK equivalent of this right, post-Brexit, is equivalent individuals or companies in the UK.
Stability has argued that Getty does not qualify for the database right.
Evidence in relation to Getty's 'substantial investment' in the relevant territories by the relevant Getty entities and all other issues in the case have been considered in the trial primarily by the examination and cross examination of both parties' witnesses.
Towards the end of the trial, reports claim that database infringement cause of action was also dropped alongside two copyright claims.
Comments
Getty's case against Stability has also been brought in the US. Whilst exceptions to copyright infringement differ in different jurisdictions and may well produce different results, the UK judgment of this dispute may also influence the UK government's proposals to change the law on copyright for the purpose of incentivising the development AI models whilst also safeguarding copyright owners.
Originally published by The Global Legal Post
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