Getty Images v. Stability AI: English High Court Rejects Secondary Copyright Claim

In Brief

On 4 November 2025, the High Court of England and Wales (the Court) handed down its long-awaited judgment in Getty Images v. Stability AI,Getty Images (US) Inc & Ors v. Stability AI Limited [2025] EWHC 2863 (Ch). a case brought by various entities in the Getty Images group as well as a contributor entity (collectively, Getty), essentially alleging that Stability AI had infringed IP rights asserted by Getty in the course of the development, training, and use of Stability AI’s Stable Diffusion image‑generation AI model.

The Court largely rejected the Getty infringement claims that were before it, save for limited findings on its trademark claim. Notably, the Court dismissed Getty’s secondary copyright infringement claim that for the purposes of the Copyright, Designs and Patents Act 1988 (CDPA), Stable Diffusion was an “infringing copy” of “an article” containing Getty’s asserted copyright works because it had been imported into the UK and its making in the UK would have constituted an infringement of the copyright in such works.

The Court further held that an “article” under UK copyright law can be intangible, a position that appears to conflict with the scope of the EU right of distribution

The Court endorsed the prevailing view that models like Stable Diffusion contain no reproductions of relevant works, i.e., there are no copies in the model. The Court further held that an “article” under UK copyright law can be intangible, a position that appears to conflict with the scope of the EU right of distribution. The Court did not address in its judgment this apparent departure from retained EU law, and arguably lacks the authority to make such a departure absent a ruling from a higher court.

Background

Getty issued UK proceedings on 16 January 2023 against Stability AI over the development and use of the Stable Diffusion image‑generation AI model. Getty’s pleaded case was broad, and included claims for (i) primary copyright infringement based on web scraping and model training and on allegedly infringing outputs, (ii) a secondary copyright claim, (iii) database right infringement, (iv) trademark infringement, and (v) passing off.

As the litigation progressed, the scope of the case narrowed significantly. In particular, Getty accepted there was no evidence that the training and development of Stable Diffusion took place in the UK, and shortly before closing submissions, Getty abandoned its primary copyright infringement and database right infringement claims. The Court proceeded on the basis that training occurred outside the UK and did not determine territorial questions about UK‑based scraping or training. The trial therefore focused on secondary copyright infringement and trademark claims under UK law.

Judgment Highlights

We note the following with respect to the Court’s judgment:

• Although an “article” under the CDPA can be intangible, said the Court, a model like Stable Diffusion that does not and had never contained, stored, or reproduced any copyright works, even transiently, is not an “infringing copy”, and hosted access (by contrast with downloads) does not amount to importation into the UK for the purposes of secondary infringement.
• With respect to Getty’s trademark infringement case relating to the generation of watermarks identical or confusingly similar to Getty’s registered marks, the Court found limited infringements under Sections 10(1) and 10(2) of the Trade Marks Act 1994 (TMA) for a small number of examples for certain iterations and access routes, but none for other iterations because no UK instances were established. For the infringements that were established, the Court was unable to determine that these were widespread, or that they continued beyond the release of v2.x. of Stable Diffusion. Further, Getty’s infringement claim under Section 10(3) of the TMA failed.
• Passing off was not substantively addressed because the Court did not consider this necessary in light of its trademark findings.
• The Court found that Stability AI did not bear direct liability for alleged tortious acts arising from the release of certain early releases on certain third‑party pages.
• Because Getty did not pursue the primary training/outputs/database claims (having accepted there was no evidence that the training occurred in the UK), the judgment does not decide whether UK‑based web scraping and model training would infringe, leaving those territorial questions for future cases or legislation.

The Core Findings on Copyright

Importantly, the Court held for the first time that an “article” for the purposes of secondary infringement under Sections 22 and 23 of the CDPA can be intangible. Reading Sections 22 and 23 together with Section 27 (which defines “infringing copy”) and Section 17 (which sets out what constitutes “copying”), the Court concluded that “article” is not confined to physical media; electronic copies stored in intangible media (e.g., in cloud environments) can constitute “articles.”

The Court reached this position by relying on the “always speaking” principle (i.e., that statutes are to be read to apply to new circumstances and technologies over time) and an integrated reading of the CDPA, emphasising that Section 17 expressly recognises copying by storage “in any medium by electronic means” and that denying secondary infringement protection merely because the storage medium is intangible rather than tangible would be inconsistent with those provisions.

However, the Court also held that Stable Diffusion is not an “infringing copy” under Section 27. The decisive factor was that the model weights for each version of Stable Diffusion in their final iteration do not and have not stored or contained reproductions of Getty’s asserted copyright works; they are the product of training, but are not themselves copies of the relevant works.

Mrs Justice Smith stated that (paragraph 600): “the Model itself does not store any of those Copyright Works; the model weights are not themselves an infringing copy and they do not store an infringing copy. They are purely the product of the patterns and features which they have learnt over time during the training process.” The Court contrasted this with the position in a previous case, in which it found that a RAM chip briefly stored a copy of the relevant copyright work and so was an infringing copy “for a short time”. As the Court concluded that the model weights cannot be a “copy” for the purposes of the Section 27 definition of an “infringing copy”, the Court considered the question of whether infringing acts occurred during the making (as also referenced in Section 27) of the model to be irrelevant. As such, Getty’s secondary infringement claim under Sections 22 and 23 failed.

In its decision, the Court noted the legal distinction between hosted services and downloadable models, which is relevant to the assessment of secondary infringement. In particular, the Court found that accessing a hosted service provided from outside of the UK whereby the model is not provided to a user but merely accessed remotely does not involve importation or possession in the UK, whereas local downloads of the model would constitute importation (provided that secondary infringement liability would only arise only if the downloaded file were itself an “infringing copy”).

Why the “Article” Reasoning Warrants Reassessment

The Court’s recognition that an “article” can be intangible marks a notable and somewhat unexpected development. Prior commentary tended to assume that the secondary infringement regime under the CDPA targeted dealings in physical “articles”. However, what failed to be articulated in this case is that from the UK’s accession to the EU in 1973 to its withdrawal in 2020, the notion of “article” became aligned with, and informed by, EU law. This continues to be the case today, since relevant EU legislation and case law of the Court of Justice of the European Union (CJEU) have been retained in UK law and remain binding on the courts.

Accordingly, domestic concepts touching the circulation of goods embodying protected copyright works have to be read consistently with the body of relevant EU and domestic legislation and case law (the “copyright acquis”). Within that acquis, the entire field of “importation” and “exportation” of copyright‑embodying goods is subsumed by the fully harmonised right of distribution under the Information Society Directive 2001. That right is designed to regulate the initial placing on the market and subsequent circulation of goods that incorporate a work, and, as the CJEU has made explicit in a number of cases and in particular its “Art & All posters” case, its scope is confined to tangible objects.See Case C‑419/13, Art & Allposters  point 37: “It follows from the foregoing considerations that the EU legislature, by using the terms ‘tangible article’ and ‘that object’, wished to give authors control over the initial marketing in the European Union of each tangible object incorporating their intellectual creation.”

Point 38 and 39: That finding, as the European Commission correctly states, is supported by international law, and in particular by the WIPO Copyright Treaty, in the light of which Directive 2001/29 must be interpreted as far as possible […].

Article 6(1) of that Treaty provides that authors of literary and artistic works are to enjoy the exclusive right of authorising the making available to the public of the original and copies of their works through sale or other transfer of ownership. In that regard, the significance of the term ‘copy’ was explained by the Contracting Parties by an agreed statement concerning Articles 6 and 7 of the Treaty adopted by the Diplomatic Conference of 20 December 1996, at which the Treaty itself was also adopted. According to that statement, ‘…the expressions “copies” and “original and copies” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects’.

Read against that framework, any national law construct of “articles” in the context of import/export analysis cannot be coherently applied to dematerialised transmissions. Those transmissions fall, instead, within the distinct, separately harmonised acts of reproduction, communication, and making available, which the EU legislature and the CJEU have treated as technologically neutral rights tailored to intangible dissemination rather than to the movement of physical copies.

The case at hand should therefore have given rise to an opportunity of recognising that, once EU law supplied the interpretive baseline, “articles” in an import/export sense could only capture physical goods embodying the work, with issues of market entry, territorial exhaustion, and cross‑border consignments assessed through the distribution right. By contrast, digital deliveries engage different exclusive rights and different infringement conditions, and cannot be shoehorned into the law of importation of “articles” without collapsing the carefully maintained distinction between the circulation of goods and that of services.  

Practical Implications

• Appeal and correction for error of law. Any decision that departs from binding retained EU law would be vulnerable to appeal to the Court of Appeal (and, ultimately, the Supreme Court) on the basis of error of law. An appellate court could set such a decision aside on the ground that the High Court acted ultra vires its interpretive powers under the European Union (Withdrawal) Act 2018 by failing to apply retained EU law consistently with binding authority.
• First sale doctrine uncertainty. If intangible copies — such as downloads, model weights, or other digital files — are treated as “articles” under the CDPA, it begs the question whether the first sale (exhaustion) doctrine could extend to digital outputs. On that view, once a digital “article” is “sold”, the rightsholder’s ability to control further transfers in the EU could be exhausted. Pursuing this line of reasoning could risk collapsing the distinction between services and goods, and unsettling the EU’s established position that exhaustion applies only to tangible goods.
• Remote access vs. downloads of software and models. On the judgment as it stands, providing remote access to a model at inference is materially lower risk than distributing model weights into the UK. Remote access also avoids the “digital exhaustion” risk, because access supplied as a service does not involve the transfer of an “article” (as defined by the Court) that could trigger a distribution right or its exhaustion.

This article was authored by Sophie Goossens and Brett Shandler.