A judge in the England and Wales High Court has refused Stability AI’s attempts to throw out IP infringement claims brought by Getty Images, paving the way for the closely watched dispute to go to trial. 

Mrs Justice Joanna Smith handed down her judgement on 1 December saying that evidence from founder and CEO of Stability AI Mohammed Mostaque that any alleged infringement took place outside the UK may be “either inaccurate, or incomplete” meaning that the case should go to trial.

Stability AI, advised by Bird & Bird, had asked the court to dismiss some of the leading stock photo agency’s claims before trial, namely copyright, database right and trademark infringement claims and passing off.

Getty Images, which is being advised by Fieldfisher, has accused the AI company of scraping millions of images from Getty Images’ websites without its consent and using those images unlawfully to train and develop its deep learning AI model Stable Diffusion, which generates images from text instructions.

Stability AI, in an attempt to get the case thrown out, had argued that all of the computing resources used for the training of Stable Diffusion had been located outside the UK and, as copyright and database rights are territorial rights, a UK court could not hear the claims.

Smith said, however, that it was “common ground” that the defendant is based in the UK, has its principal place of business in the UK and has (and had both prior to and after March 2022) a number of UK-based employees in its development team.

She continued that notwithstanding Mostaque’s evidence that none of these employees worked on the training and development of Stable Diffusion, “there are contemporaneous documents which appear to tell a different story”.

“These documents raise the spectre that Mr Mostaque’s evidence is either inaccurate, or incomplete,” she added.

Evidence included screenshots taken from interviews on YouTube of Mostaque describing how he was fast tracking the visa applications of Russian and Ukrainian programmers to work in the UK. Smith said this raised the possibility of developers working in the UK in connection with the development and training of Stable Diffusion, whether as independent contractors or otherwise.

The judge did say that at trial, some of the evidence “would (on its face) provide strong support for a finding that, on the balance of probabilities, no development or training of Stable Diffusion has taken place in the UK”. She added: “This is not, however, the trial of this action.”

Smith continued that to grant summary judgment, she must be satisfied that there is “no real prospect of the claimants being able, at trial, to refute this evidence”.

Welcoming the judgment, Getty Images said it determined that it “has a real prospect of success on those claims” and allowed the entire case to continue to trial.

A spokesperson for Stability AI said: “Stable Diffusion was not trained in the UK and we expect to be fully vindicated at trial.”

This is the latest twist in a transatlantic dispute between Getty Images and the UK start-up, founded in 2019 by Mostaque. Getty Images brought a parallel claim in Delaware district court in February accusing Stability AI of copyright infringement.

Getty Images accuses Stability AI of infringing photographs, video footage and illustrations; a substantial proportion of the visual assets are said to comprise original artistic works and/or film works in which copyright subsists.

Getty Images alleges that the first version of Stability Diffusion was trained using about 12 million visual assets (of which around 7.3 million are defined as the “copyright works” being relied on by Getty Images in the UK proceedings where Getty Images either owns the copyright or has an exclusive licence from the copyright owner) together with associated captions from Getty Images’ websites.

The Fieldfisher team advising Getty Images is led by partner Nick Rose and includes senior associate Chris Leung and associate Emma Varty. Lindsay Lane KC and Jessie Bowhill, of 8 New Square, are instructed on the case. 

Stability AI is represented by Nicholas Saunders KC, of Brick Court Chambers, and Jaani Riordan, of 8 New Square.