The irony of ironies is that, despite the 41 copyright lawsuits against AI companies filed in the United States, the UK High Court will hold the first trial involving AI generators in Getty Images v. Stability AI.
The trial starts today, June 9, before Justice Joanna Smith, and is slated for 3 weeks. From the court’s website: “Mrs Justice Joanna Smith was called to the Bar in 1990. She was appointed Queen’s Counsel in 2009, and a Deputy High Court Judge in 2017. She became a Judge of the High Court, assigned to the Chancery Division, in 2021. She also sits in the Technology and Construction Court and the Patents Court. She has been the Chair of the Tribunal Procedure Committee since 2020.”
The case is, in fact, similar to the U.S. lawsuit filed in Delaware on February 3, 2023. This case, however, appears to be slowly proceeding while the UK lawsuit marches on.
Lawyers from Simmons + Simmons provide an excellent summary and analysis of the UK case thus far. From their analysis, a couple points about Stability AI’s defense:
“Stability contends that the development and training of its Stable Diffusion models occurred outside of the UK, and therefore, no acts restricted by Getty’s intellectual property rights were performed in the UK.”
“Stability contends that its models’ synthetic image outputs in response to user prompts are created without use of any of Getty’s copyright-protected works, that the outputs do not reproduce any copyright works and that any resemblance between generated images and Getty’s works is coincidental and not due to copying.”
Remember that UK copyright law does not have a fair use defense, or a general exception like the United States. Instead, it has a much narrower exception for fair dealing and a limited exception for text data mining or computational analysis. From the reporting, it does not appear that Stability AI is resting its defense on either limited exception for the training of its model, which it argues occurred outside the UK and therefore did not violate UK law. But Stability AI does assert fair dealing as an alternative argument for any output that might qualify as pastiche.
According to Jill Bainbridge, a lawyer at Harper James: “‘Pastiche’ is where you imitate someone else’s style or work or create a medley of other people’s works. ‘Pastiche’ can cover a wide variety of works, including collages, compilations, and fan fiction. The exception does not mean any form of borrowing, reproduction, or imitation is allowed.”