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In Getty Images v Stability AI (4 November 2025), as well as the copyright and trade mark infringement issues (see our blog post of 4 November here), Mrs Justice Smith DBE was also asked to rule on the nature of the licences under which Getty acquired the right to bring the infringement action in relation to the images allegedly infringed by Stability AI. In particular, there was an assessment of whether the licences were exclusive licences or not – since an exclusive licensee of copyright works has concurrent rights with the rights owner and is jointly entitled to a remedy for copyright infringement (section 101 Copyright Designs and Patents Act 1988 (CDPA)). If any of the licences were held not to be exclusive, Getty would not have the standing to bring a claim for copyright infringement in respect of the copyright works licensed under those licences.
The Court reviewed the English law on exclusive licences (as well as New York law), concluding that of the 14 sample licences reviewed, seven constituted exclusive licences while the other seven did not, within the meaning of an "exclusive licence" as defined under section 92 CDPA. The decision provides a useful reminder of the significance of good drafting when purporting to grant an exclusive licence since such licences can be challenged on a variety of grounds which may lead to a lack of standing to bring enforcement action at the critical moment.
The principles
As the Court put it (at paragraph 658):
"The essential requirements under s 92(1) are twofold: the licence is to be written and signed by the copyright owner and/or by someone on their behalf; and the licence is "to the exclusion of all other persons" including the copyright owner. The effect of sections 92(1) and 101 of the CDPA is that the exclusive licensee has all the rights of a copyright owner (i.e. as if there had been an assignment) and the copyright owner is left only with the right to sue other persons for infringement."
Determination of exclusivity under English law
Mrs Justice Smith DBE quoted from the Patents Court judgment in Oxford Nanopore v Pacific Biosciences ([2017] EWHC 3190 (Pat)) on the assessment of exclusivity - including that the fact that a licence purports to be exclusive is not definitive; it is a matter of English law whether it is or is not. It is possible to have exclusive licences with separate exclusive domains (eg for different uses, territories, and different periods of time) and an exclusive licence can include the right for the exclusive licensee to grant sub-licences. However each exclusive licence may only be granted to one person – a licence will not be exclusive if granted to a number of entities even if they are under the same control. The essential element of an exclusive licence is that it is a licence to the exclusion of all other persons, including, here, the copyright owner. This is a key point and can be overlooked in a licence which is agreed to be exclusive and is granted to a licensee and all members of its corporate group. Mrs Justice Smith DBE referred to the Patents Court judgment in Illumina Inc v Premaitha Health Plc ([2017] EWHC 2930 (Pat)), where a licence was found to not be exclusive because it was granted to a group of companies, and not one single company (which is an essential requirement for an exclusive licence).
Determination of exclusivity in licences governed by foreign law
The sample licences produced in the proceedings were governed by the law of Alberta, Canada (which was presumed to be the same as English law) and the law of New York, USA.
The judge outlined the approach to be taken in determining if the agreement is an exclusive licence when that licence is governed by a foreign law. She confirmed that "the interpretation and construction of that agreement will be subject to its governing law", however "once any of the disputed issues of interpretation are resolved, the question of whether the licence is an "exclusive licence" is a question of English law applying sections 92 and 101(1) CDPA to the terms of the licence as the court has construed them".
Under New York law an exclusive licence can be shared between one of more parties including between the licensee and the owner and between more than one licensee and can still be exclusive (from the point of view of New York law).
The Court found that the licences where there was more than one entity licensed were not exclusive under English law even if they could have been held to be so under New York law.
Challenges to the exclusivity of the licence agreements
Stability challenged the exclusivity of the licence agreements on three main grounds:
- the "Multiple Entity Point" alleging that the licences were granted to more than one entity;
- the "Carve Out Point" concerning a clause present in some of the licences which related to differential uses of aspects of copyright but could indicate that they were not to the exclusion of all other persons;
- the "Signature Point" largely challenging whether the person signing had the authority to sign and whether the signature was in writing and what would qualify as "in writing".
On the Multiple Entity Point, although under New York law an exclusive licence can be granted to more than one entity, under English law this is not permitted (which is the relevant law to be considered here).
For several of the sample licence agreements, it was concluded that the licensee referred to multiple entities, thus these agreements could not be an exclusive licence under section 92 CDPA.
Two of the later agreements with revised definitions were considered to be exclusive licences due to the inclusion of the phrase "the rights granted to Getty Images ... may be sublicensed to one or more Affiliates in Getty Images' discretion". The court adopted a narrower construction of these licences so that the licence was granted to Getty Images (US) Inc alone.
The Carve Out Point related to a clause in five of the licences which Stability claimed described a "vaguely defined carve out" permitting each copyright owner to license its works and exploit the content in parallel with Getty (and as such that the licences were not exclusive under English law).
On this point, Mrs Justice Smith DBE favoured Getty's proposed interpretation of the clause, finding that the clause was not a carve-out of rights but related to a clause where the rights retained by the licensor were set out and re-iterated an exclusive licence does not need to apply to all of a rightsholder's rights. Mrs Justice Smith DBE concluded that even if this interpretation was incorrect, the clause "is so vague as to be unenforceable that it cannot possibly affect the provisions of the rest of the agreement" (the Carve Out point therefore did not itself deem the licences to be non-exclusive under English law).
The final challenge – the Signature point - concerned the requirement under section 92(1) CDPA that an exclusive licence be "in writing" and "signed by or on behalf of the copyright owner". By the time the case came to trial, the question around what would satisfy these requirements was no longer in dispute. The judge confirmed that the writing requirements are broadly defined to include "just about any method or medium of fixation" and that "signed" is interpreted equally broadly.
Nonetheless, Stability contended that whether a licence has been signed is fact sensitive, drawing attention to two of the agreements. The judge agreed, but concluded that, despite their not being expressly signed, there was sufficient evidence that the two agreements in questionwere signed.
Applying these various approaches on the "points" raised by Stability, Mrs Justice Smith DBE concluded that seven out of 14 licences were exclusive licences and thus Getty had sufficient standing to bring a claim for copyright infringement of the relevant copyright works.
In summary, as highlighted above, this judgment demonstrates the importance of careful drafting when purporting to grant exclusive licences and of carefully considering whether the formalities required for a licence to be an 'exclusive licence' under English law are met.
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