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Mrs Justice Joanna Smith DBE has granted permission to Getty to appeal her finding of no secondary copyright infringement in her judgment of 4 November (see Getty fails in the UK courts in its (secondary) copyright infringement claims against Stability AI's image generating AI) but not to Stability AI in relation to her finding of trade mark infringement (although a penal notice application by Getty in relation to the latter was refused). The judge also makes some comments and required wording to be inserted into the order, asserting the fact that the primary copyright case was withdrawn at the very end of the proceedings and clarifying that the court did not adjudicate on this aspect of infringement. Getty Images (US), Inc & Ors v Stability AI Ltd [2025] EWHC 3343 (Ch).
- On the application for permission to appeal of the secondary copyright infringement findings: Mrs Justice Joanna Smith DBE states that the appeal by Getty of the decision on secondary infringement of copyright "does in my judgement, have a real prospect of success. It concerns a pure question of law, namely a matter of statutory construction on which the minds of reasonable lawyers may differ"
- On the application for permission to appeal of the trade mark infringement findings: The request by Stability AI to appeal the finding of trade mark infringement was denied but a request by Getty for a penal notice in relation to the trade mark infringement found at trial was deemed unnecessary by the judge. The defendant had given a voluntary undertaking which was sufficient and "As to the issue of enforcement in due course and the potential for a committal application, all versions of the relevant models have now been retired and it is not, in those circumstances, clear to me why the claimants would need a penal notice which appears to me to be unnecessarily inflammatory".
"... there are other compelling reasons for the appeal. The point of law is both novel and important because it concerns how the provisions of the CDPA should be construed (and specifically the phrase "infringing copy") in the context of an AI model. This is not an issue that has previously been considered by any court. As the claimants submit, that novel point also has potentially far-reaching ramifications for AI models and intangible articles such as software more generally.
In my judgment this is plainly an issue that would benefit from consideration by the Court of Appeal. That does not necessarily mean that I accept that every single one of the proposed grounds of appeal has a real prospect of success, but I see no reason to salami-slice them now. Much better that the claimants should have the opportunity to raise on appeal all of the points they wish to raise in this context".
- On primary/direct copyright infringement: The judge also commented re primary/direct infringement: "I do not consider that what I have said in the judgment binds me as to how I approach the question of whether to dismiss or discontinue the claims of primary infringement of copyright and database right infringement."
"In my judgment, in circumstances where those claims were pushed all the way to closing submissions, at vast expense and following substantial cross-examination, and in circumstances where it was then accepted by the defendants in closing that they could not pursue those claims in light of the evidence (including that they said in a letter of 20th June 2025 that their decision to abandon those claims "reflects the impact of oral evidence" on all the claims) the appropriate order is that those claims should be dismissed.
However, it is also, in my judgment, important that the circumstances in which those claims have been dismissed should be clear on the face of today's order. Accordingly, either in the recitals to the order or in paragraph 5, there should be added words to the effect of: "... in circumstances where those claims were fought all the way to closing submissions and then abandoned". This will ensure that there can be no later suggestion (along the lines that Mr. Marshall has identified), whether in the UK or elsewhere, that the court has actually adjudicated on those claims".
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