A High Court judge has ruled that "synthetic" images bore watermarks that were identical to those of iStock, Getty Image's subsidiary. (iStock.com/Terroa)
However, there was no evidence of a single user in the U.K. generating watermarks from Getty Images, or iStock, Judge Smith ruled. It would be "impossible" to know how many watermarks have been generated "in real life" that would be considered infringing, Judge Smith added.
"Although Getty Images succeed (in part) in their trade mark infringement claim, my findings are both historic and extremely limited in scope," Judge Smith said.
The AI company also dodged arguments from Getty that it should be on the hook for copyright infringement. The High Court dismissed contentions by the image giant that the Stable Diffusion AI model itself could be considered an "infringing copy" of Getty's intellectual property.
The decision shuts the book on the infringement claim Getty lodged in May 2023.
The company had initially accused the AI company of training and developing its model on millions of copyright images from Getty and iStock, but dropped this point in the final days of trial in a last-minute pivot in the proceedings.
Getty instead ran with its claims of trademark and secondary copyright infringement, alleging that Stable Diffusion itself could be considered a copy of its IP.
Judge Smith noted on the trademark issue that this claim was "very different from the conventional trademark case," in that no two photos will be exactly the same given the "stochastic" nature of AI image generation.
Even in instances where an "apparent" watermark appeared on images generated using Stable Diffusion, this was not sufficient enough to amount to trademark infringement claims under sections 10(1) and 10(2) of the Trade Marks Act 1994.
"A mere 'splodge' or heavily distorted word that might or might not represent an attempt by the model to generate a watermark* is unlikely to do so, whereas the clearer and less distorted the watermark becomes the greater the potential for a claim," Judge Smith held.
But Judge Smith ruled Tuesday that only a handful of images generated by Getty Image's counsel using older versions of Stable Diffusion could constitute trademark infringement.
Judge Smith also declined to make any finding on the number of copyright works used in the training of Stable Diffusion given the lack of evidence on the point available.
Two images, referred to as the "Dreaming Image" and the "Spaceships Image," featured iStock watermarks that were identical to the company's trademarks, according to the judgment.
One image of a "Japanese Temple Garden" replicated a Getty Images watermark that was similar enough to potentially lead the public to associate the AI image with the photo giant's trademark, Judge Smith held.
On the secondary copyright claim, the judge first clarified that the act of making the "model weights" available to U.K. consumers to download constituted "importation" of the model into the country. Model weights define parameters required for Stable Diffusion to function.
However, Judge Smith did not go as far as to say that the online versions of Stable Diffusion accessed via Dream Studio were imported.
These AI models constitute "intangible articles," and subject to the same criteria for copyright infringement as tangible objects such as clothing, she held.
While Stable Diffusion could effectively be "imported" into the U.K., the model did not strictly store or reproduce any works protected by copyright, so could not constitute an infringing copy of Getty's IP.
Judge Smith also declined to make any finding on the number of copyright works used in the training of Stable Diffusion given the lack of evidence on the point available.
Christian Dowell, Stability AI's general counsel, said the company was "pleased with the court's ruling on the remaining claims in this case."
Getty Images welcomed the ruling that Stability AI could not hold the user accountable for the trademark infringement, calling it a "significant win for intellectual property owners."
The company did not disclose in a statement whether it intends to appeal the decision.
Getty Images and iStock were represented by Lindsay Lane KC, Jessie Bowhill and Joshua Marshall of 8 New Square, instructed by Fieldfisher LLP.
Stability AI was represented by Hugo Cuddigan KC and Edward Cronan of 11 South Square and Henry Edwards of 8 New Square, instructed by Bird & Bird LLP.
The case is Getty Images (US) Inc. and others v. Stability Al Ltd., case number IL-2023-000007, in the High Court of Justice of England and Wales.
--Editing by Joe Millis.
Update: This story has been updated with further details of the ruling, background to the case and comment, as well as counsel and case information.
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