This decision represents the latest development in what is set to be a defining case regarding intellectual property rights in the digital age.
Background
Getty Images (US) Inc (‘Getty’) is a leading global visual media company and supplier of stock images, photography, and video content, with a library of over 400 million such assets. Stability AI Ltd (‘Stability’) is a London based AI developer, whose output includes its ‘Stable Diffusion’ system. This technology allows users to generate an image based upon text or image prompts input by users.
As part of the development of Stable Diffusion, thousands of images were used to help to train the software to produce these images. Getty alleges that Stability used images owned by them as data inputs for these purposes. Additionally, they argue that the outputs created are synthetic images which reproduce substantial parts of its copyrighted works.
The Claimants
Getty alleges that more than 50,000 photographers and content contributors have had their rights infringed by Stability in this way. These individuals had all exclusively licensed their content to Getty via licence agreements. It was proposed that one of these right holders would raise a representative action on behalf of the entire group.
Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road”
Stewart Brand
Thomas M. Barwick, Inc (‘Barwick’) is a prominent US photographer, whose company has a longstanding relationship with Getty, having licensed many thousands of images to them. Getty wanted Barwick to act as representative for the class as permitted under Civil Procedure Rule class 19.8. It was argued that he could represent the other individuals whose property had allegedly been infringed by Stability in the same way.
Representative claims
The Civil Procedure Rules give the court the power to allow a representative claim only where it can be shown that all members of the class have the “same interest” in the claim. There must be no conflicts of interest amongst them and the chosen representative must be able to effectively promote and protect the interests of all members of the class.
Stability’s objection
Stability objected to the definition for being too vague and imprecise, and that the description of those whose rights “have been infringed by the defendant” should not be allowed as they dispute the infringement.
Further, they argued that each of the individual copyright owners had different agreements and levels of exclusivity, which required individual assessment rather than a single, group claim.
Decision
It was considered that Barwick’s application to represent the class could not be permitted for a number of reasons.
Firstly, because the way that the class had been defined was premised on the assumption that their rights had been infringed by Stability, which has not been decided yet. Previous cases have established that a class must be clearly defined and identifiable, and not dependent on the outcome of the proceedings; Emerald Supplies Ltd & Anor v British Airways Plc [2010] EWCA Civ 1284.
Secondly, the definition depended in part on knowing which owner’s works had been used by Stability as part of the training. Neither party was able to present a practical way of ascertaining which works had or had not been used, and Stability only conceded that “at least some” had been used. This meant that it was not possible to say whether a particular individual did belong to that class until the infringement had been proved.
Concerns
A group claim is intended to reduce both costs and the court’s time, but in this instance the court were not persuaded that a class action would achieve this by removing the need for time consuming assessments of individual cases of liability.
There were concerns that Stability would be left open to further claims, unless all content creators with concurrent rights of action were joined to the case. Stability would otherwise be left open to a potentially huge number of separate claims. Although many of the individual licence agreements contained a Right to Control Claims Clause, Stability was not party to these, so was not offered any protection by them.
Whilst the idea of a representative action was not dismissed entirely, it could not proceed in its current form. It was acknowledged that a representative action did make sense in theory and that it would allow focus on the “big picture” in cases of this scale going forward.
Next steps
With the next stage of the trial due in June 2025, the court urged the parties to find a way to address these administrative challenges as a matter of urgency, advising that “a pragmatic way forward must be found which does not involve the joinder of 50,000 claimants”.
Protecting content
The court’s decision raises questions around how content creators can protect their work from being used to train and develop AI without their permission. Individuals are unlikely to have the finances to embark upon expensive litigation themselves, so it leaves them with no way of protecting their IP rights at present if a workable way of allowing class representation is not found.
Additionally, there is the difficulty of proving such rights have been infringed. As shown here, Stability themselves do not know with certainty which images have been used for training, so proving infringement will be extremely difficult.
Commentary
This is an emerging and fast changing area, where the legal system is having to work quickly to address the challenges that new technologies bring.
The government is currently producing a consultation paper on copyright and AI. One of the proposed suggestions would be to force AI developers to be more transparent about the data they have used for training. This would certainly take away many of the issues relating to the definition of class encountered in this case.
It will be very interesting to see how this case plays out at trial as well as the results of the government’s review into this area.
Link: Getty Images (US) Inc & Ors v Stability AI Ltd [2025] EWHC 38 (Ch) (14 January 2025)
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