Getty Images (US) Inc & Ors v Stability AI Ltd [2025] EWCA Civ 749

[2025] EWCA Civ 749Appeal Ref: CA-2025-001408
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 1423 (Ch)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
Mrs. Justice Joanna Smith DBE
Venue Royal Courts of Justice Strand, LondonDate Monday, 16 th June 2025
WC2A 2LL
Before
LORD JUSTICE MALESLORD JUSTICE ARNOLD
Between
STABILITY AI LTDDefendant/
MR. MICHAEL BLOCH KC and MS. MARLENA VALLES (instructed by Fieldfisher LLP) for Claimants/AppellantsMR. NICHOLAS SAUNDERS KC and MR. HENRY EDWARDS (instructed by Bird & Bird LLP) for Defendant/Respondent
JUDGMENTTranscript of the Stenograph Notes of Marten Walsh Cherer Ltd.,2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
[1]This is an appeal by the Claimants against an order made by Joanna Smith J on 9 June 2025, which was the first day of the trial of these proceedings, in which she declared that the allegations advanced in paragraphs 5, 266.3 and 266.4 of the Claimants’ skeleton argument for trial concerning child sexual abuse material (“CSAM”) were not pleaded in paragraph 57.9 of the Claimants’ Re-Re-Re-Amended Particulars of Claim.[2]The background to the matter, in very brief summary, is that the Claimants are, with one exception, members of a group of companies which own and operate websites such as Getty Images, which comprise millions of what are referred to as “visual assets”, including photographs and video footage covering a broad range of subject-matter. I will refer to the Claimants collectively as “Getty”.[3]In or around August 2022, the Defendant, which I will refer to as “Stability”, launched a deep learning text-to-image artificial intelligence model that is used to generate synthetic images in response to text commands and image prompts entered by users. That model is called Stable Diffusion. Stable Diffusion was trained on visual assets taken from the internet, including, it is said, around 12.3 million visual assets from the Getty Images websites, as well as publicly-accessible third party websites.[4]Getty has brought a claim against Stability for infringement of copyright, database right, trade marks and passing off. The issue on the present appeal concerns the allegation of trade mark infringement.[5]The publicly-available images on the Getty Images website typically contain watermarks, which include Getty registered trade marks. The claim for infringement with which we are concerned concerns an allegation that synthetic images produced by Stable Diffusion also include signs which are identical or similar to Getty Images’ trade marks. Specifically, Getty alleges that images can be produced by Stable Diffusion containing such signs which are detrimental to the reputation of the trade marks, and therefore that conduct amounts to infringement within section 10(3) of the Trade Marks Act 1994.[6]The concept of detriment to the repute of a trade mark was explained by the Court of Justice to the European Communities (as it then was) in the leading case, Case C-487/07 L'OréalSA v BellureNV [2009] ECR I-5185, at [40]:
“As regards detriment to the repute of the mark, also referred to as tarnishment or degradation, such detriment is caused when the goods or services for which the identical or similar sign is used by the third party may be perceived by the public in such a way that the trade marks power of attraction is reduced. The likelihood of such detriment may arise in particular from the fact that the goods or services offered by the third party possess a characteristic or a quality which is liable to have a negative impact on the image of the mark.”
[7]Paragraph 57.9 of the Particulars of Claim, as re-amended on 12 July 2024, alleged as follows:
“Further or alternatively, Stable Diffusion can be used to create images that contain pornography, violent imagery, and propaganda. Any association with such content will tarnish the reputation of the Trade Marks and each of them.”
[8]It might be thought that that pleading cried out for further particularisation; but surprisingly, it might be thought, Stability made no request for further information under CPR Part 18. Stability did plead in its Defence, at paragraph 100.10, that:
“Paragraphs 57.7 to 57.9 are vague and embarrassing and cannot be pleaded to. No particulars supporting the allegation that Stability intended to take unfair advantage of the Claimants’ reputation, or that use will result in dilution or tarnishment, are pleaded. …”
[9]It is against that background that there was a case management conference, to which I must return, before the judge on 30 April 2025. As a result of that case management conference, Getty re-re-re-re-amended paragraph 57.9 of the Particulars of Claim on 6 May 2025 to add the following sentence:
“Examples of such images which have been created using Stable Diffusion are at pages 20 and 100 of Annex 8H and Confidential Exhibit DAS-15 to the Witness Statement of David Stanley.”
[10]In Getty’s skeleton argument for trial, which was exchanged on 30 May 2025, it was alleged in paragraph 5:
“More disturbingly, the LAION datasets used by Stability to train Stable Diffusion are not restricted to content from Getty Images’ websites, but also contain materials scraped from publicly accessible third party websites and include ‘not safe for work’ (‘NFSW’) content and child sexual abuse material (‘CSAM’) content. As a result, Stable Diffusion is capable of generating artificial image outputs which contain unsafe materials including the generation of pornographic images. Any association users make between output from Stability’s platform and Getty Images therefore risks causing harm to Getty Images’ long-standing goodwill and reputation. This is troubling in its own right. The fact that Getty Images’ trade marks may appear on such images magnifies that concern significantly.”
Details of this allegation were given in paragraphs 266.3 and 266.4.[11]Stability was perhaps a little slow to respond to that, but in an eighth letter from Stability’s solicitors to Getty’s solicitors of 6 June 2025, which was sent at 8.21 p.m. that evening, objection was taken to the paragraphs of the skeleton argument in question. It was that objection that led to the judge making the ruling and order which are under appeal, as I have already indicated, in the course of the first day of trial.[12]The judge, understandably, had little opportunity to consider the objection at leisure and she gave an extempore judgment after having heard argument on it. As the argument was presented by counsel for Stability, the objection was a pleading point: namely, that allegations concerning CSAM were simply not part of Getty’s case as pleaded in paragraph 57.9 of the Particulars of Claim. The judge accepted that argument for the reasons that she briefly expressed in paragraphs 8 and 14 of her judgment:
“8. I do not consider the general wording in paragraph 57.9 of the Particulars of Claim obviously to incorporate a reference to a criminal act in the form of CSAM. I agree with Mr. Cuddigan that there is an obligation on a pleading party properly to plead out its case (particularly where that case involves serious allegations such as fraud or illegal conduct) so that the opposing party understands the nature of the allegations and is able to prepare to meet them at trial. If the claimants wished to rely upon the points made in their skeleton argument in this case, they should have applied to amend their pleading to include direct reference to those points. They have made no such application, but have instead sought to introduce this issue on the eve of trial via their skeleton argument. … 14. I consider the meaning of the words ‘pornography’ and ‘violent imagery’ to be clear. Without additional explanation I do not consider that the defendant should have appreciated that it was the claimants’ intention to include reference to CSAM within these terms. In particular I note that, as Mr Cuddigan points out, the claimants have not sought to rely upon any examples of images in this case which are said to amount to CSAM. None of the images pleaded in paragraph 57.9 of the Particulars of Claim fall into that category. Accordingly, I can see no reason why the defendant should have interrogated the terms ‘pornography’ and ‘violent imagery’, much less that it should have understood or suspected that those terms included reference to CSAM.”
[13]Getty appeals on two grounds. The first ground is that the judge erred in her interpretation of paragraph 57.9 of the Particulars of Claim. The second ground is the judge erred in her application of the principles on pleading serious allegations.[14]So far as ground 1 is concerned, Getty contends that the word “pornography” is not restricted to legal pornography, but on the contrary is broad enough to encompass both legal and illegal pornography, and that child pornography or CSAM is simply a subset of illegal pornography.[15]So far as ground 2 is concerned, Getty contends that the judge wrongly applied the rules on pleading fraud and other serious allegations because, in the present case, Getty is not asserting that Stability is, itself, guilty of, or complicit in, criminal misconduct or any other form of wrongdoing. Rather, the allegation is that it has built a system which is capable of being misused by users.[16]In the case of ground 1, it seems to me that there is force in Getty’s criticism of the judge’s reasoning. The word “pornography” is an entirely general word. It is defined in the Oxford English Dictionary (third edition, online) as follows:
“The explicit description or exhibition of sexual subjects or activity in literature, paintings, films, etc., in a manner intended to stimulate erotic rather than aesthetic feelings; printed or visual material containing this.”
[17]There is then the statement:
“A distinction is often made between ‘hard’ and ‘soft’ pornography, on the basis of how explicit or taboo the material in question is held to be.”
[18]This is followed by a series of illustrative quotations, the last of which is a quotation from the year 2005 as follows:
“Sentencing has been set for a man who pleaded guilty to downloading child pornography on a work computer.”
[19]As the definition and the illustrative quotation make clear, the word “pornography” has a broad meaning. It can be divided into legal and illegal pornography, and illegal pornography can be further sub-divided into various forms including child pornography.[20]It therefore seems to me that Getty is correct that, taken at face value, paragraph 57.9 of the Particulars of Claim was broad enough to include what until recently used to be called child pornography and is now more properly referred to as CSAM.[21]That conclusion is reinforced, it seems to me, by a number of matters. First, the fact that the pleading also includes the reference to “violent imagery”, which may also be legal or illegal. Secondly, the fact that a number of legal instruments reinforce the conclusion that a subset of pornography is child pornography. I refer by way of example to Article 34(c) of the Convention of the Rights of the Child, Article 3(b) of the International Labour Organisations document C182 and Article 2 of EU Directive 2011/93. Thirdly, there is the difficulty of differentiating in any clear way between different types of pornography. It may be unclear, for example, whether an image of a teenager is CSAM or not.[22]That, however, is not the end of the matter. I have already referred to the amendment to the Particulars of Claim that was made as a result of the case management conference on 30 April 2025. At that case management conference, counsel for Stability raised the objection that the reference in paragraph 57.9 of the Particulars of Claim was very general, and said that, if Getty intended to rely on specific examples, then Getty should be required to give Stability notice of such examples. He specifically made the point that, as he put it in the course of argument, “… to the extent that they want to pull rabbits out of hats at trial, I will be saying [they] should have been here [i.e. in the Particulars of Claim].”[23]The judge expressed sympathy with that point, and expressed the view to counsel for Getty that Getty ought to plead the concrete examples which Getty relied upon to show that the assertion was correct. She did not think, however, that it was necessary for Getty to plead the expert evidence that it was relying on, as counsel for Stability had also suggested. There was then some discussion as to the extent of the examples which Getty ought to plead, and the point was made by counsel for Getty that Getty relied upon the examples contained in the exhibit to the witness statement of Mr. Stanley as well as the two examples in Annex 8H.[24]The discussion concluded with the following exchange between

the judge and counsel for Getty:

“MRS. JUSTICE JOANNA SMITH: Well, the way that litigation should be conducted is that matters on which a party wishes to rely are identified in the pleadings so the other side knows what case it has to meet. MS. LANE: Exactly. Sorry, I did not mean to interrupt, my Lady. That is why we have pleaded that Stable Diffusion can be used to create images that contain pornography. MRS. JUSTICE JOANNA SMITH: I follow that, but I think the defendant is entitled to know, if you are relying upon specific examples of images that you say go to that plea, they should be identified. MS. LANE: Fine. We will obviously go away and consider that point but I do lay a marker down if my learned friend is going to try and put something in response that goes outside the existing plea in terms of a positive case about this. We will just have to wait and see what comes in in the amended defence about that.”
[25]Thus, as I read the transcript, it was accepted by Getty at that stage that it needed to plead the specific examples that it relied upon in support of the general plea. It was for that reason that the amendment was made to paragraph 57.9 to which I have already referred, referencing pages 20 and 100 of Annex 8H and the exhibit to the witness statement of Mr. Stanley.[26]It is relevant also to take into account what happened in response to that amendment. First, Stability re-re-reamended its Defence on 13 May 2025 to add a further sub-paragraph (iii) to paragraph 100.10 as follows:
“As to the specific allegations of tarnishment at paragraph 57.9, these allegations are unparticularised with respect to the images relied upon and therefore incapable of response in this pleading. In any event, the burden is on the Claimants to prove the images at page 20 and Annex 8H and Confidential Exhibit DAS-15 were generated through normal or occasional use of Stable Diffusion and/or prompts that are sufficiently likely to be used to justify the relief sought, for the reasons set out at paragraph 74.2(iii), 80 and 96.6.(ii). The Defendant will say that these outputs are not reflective of normal use of the models and cannot be attributed to it as use in the course of trade of the signs complained of. The Defendant will additionally rely on the terms pleaded above at paragraphs 61, 63.B, 63E, 63F and 67.4.”
[27]Getty then re-re-amended paragraph 69 of its Reply on 23 May 2025, to add the following:
“As to the final three sentences of paragraph 100.10(iii) the Claimants repeat paragraphs 33, 34D, 34G, 34H, 37.5, 44.3, 48 and 66, above. It is denied that the allegations of tarnishing are unparticularised, however, for the avoidance of doubt the Claimants will contend as follows: 69.1. The images identified in paragraph 57.9 of the POC are Not Safe For Work, having regard to the content of the images, specifically (i) the depiction of nudity, and/or (ii) the particular poses and actions of the persons depicted. 69.2. Further, as far as tarnishment of the reputation of the Trade Marks is concerned, there is a difference between a genuine image of a celebrity or other person who has chosen his or her attire for use in a public performance and/or chosen a particular pose or action, and the generation of synthetic images bearing the Trade Marks that do not depict a real event and/or where the person has not chosen his or her attire or the pose/action depicted.”
[28]The upshot, in my judgment, is that, while the original allegation in paragraph 57.9, and specifically the reference to “pornography”, was broad and general, it was understood by the parties at the case management conference on 30 April 2025 that Getty needed to particularise the specific images that it was relying upon. It duly did so. It is common ground that the images in question are not ones which could be said to be examples of CSAM. On the contrary, they are images the broad nature of which can be gathered from the Reply, that is to say, they are artificial images of celebrities in states of undress. They therefore fall within the broad remit of pornography, but not of CSAM.[29]When asked what he contended the purpose and effect of the amendment to the Particulars of Claim was, counsel for Getty replied that the purpose and effect of the amendment was merely to ensure that any specific examples of images upon which Getty relied had to be particularised so as not to take Stability by surprise at trial. He submitted that that did not mean that the broad scope of the allegation was thereby limited.[30]I do not accept that submission. It seems to me that the purpose and effect of the amendment which Getty agreed to make at the case management conference, and did make thereafter, was to plead, by way of example, images of the kind objected to. That interpretation is confirmed by the sub-paragraphs of Getty’s Reply which I have quoted. Those sub-paragraphs make it plain that the objection is to images which are said to be “not safe for work”, specifically the depiction of nudity and/or the particular poses and actions of the persons depicted.[31]On an objective reading of Getty’s statements of case, the allegations that are advanced do not extend to CSAM. Accordingly, it seems to me that the judge’s ruling as to the scope of Getty’s pleaded case was correct, albeit I reach that conclusion for somewhat different reasons to those given by the judge.[32]I would therefore dismiss this appeal.

LORD JUSTICE MALES:

[33]I agree that the appeal must be dismissed, for the reasons given by Lord Justice Arnold.[34]“Pornography” is a very wide term which, as a matter of ordinary language, includes child sexual abuse material and also what is referred to as “extreme pornography”. Possession of both of those categories of photography is illegal.[35]Even pornography which it is illegal to possess covers a wide range of images, as can be seen, for example, from the guidelines given by the Sentencing Council in relation to what, in that context, are called “indecent photographs” of children, which distinguish for sentencing purposes between images which show penetrative sexual activity, other sexual activity and other indecent images.[36]Accordingly, the reference to pornography in paragraph 57(9) of the Claimants’ pleading cried out for particularisation. That was the purpose and effect of the discussion which took place at the CMC on 30th April, to which my Lord has referred. The Claimants did then amend their pleading to provide examples of the case. The examples which they gave were artificially generated images purporting to show a celebrity female singer performing topless or naked. The whole purpose of those examples was to clarify the case which the Claimants were making. Mr. Michael Bloch KC for the Claimants expressly accepted in the course of his submissions this morning that there could in principle be a plea in general terms of which particulars were then given by way of example, which would narrow the scope of the pleading – although he went on to submit that was not the purpose or effect of the amendment which followed the April CMC. In my judgment, that was precisely its effect.[37]I would not want, however, to try to define the precise limits of what is covered by the pleading as it now stands. It is sufficient to say that the examples given are very far away from pleading a case which includes reliance on child sexual abuse material or other material which it is illegal to possess. Accordingly such a case is not open to the Claimants on the existing pleading, and the judge has subsequently refused them permission to amend to advance such a case, a decision which has not been appealed.[38]It is notable that at no stage of the case were directions given to address how child sexual abuse material should be handled in the course of the trial. Such directions would have been necessary if that had been understood to be an element of the case which the Claimants were advancing. That may not be strictly relevant as the interpretation of the pleadings is an objective rather than a subjective matter, but it goes some way to explain why the judge (who has managed this case in multiple hearings since the proceedings were issued in January 2023) was right to be surprised by the allegations relating to child sexual abuse material which appeared for the first time in the Claimants’ skeleton argument for trial.[39]I would mention one further point, which is concerned with the terms of the judge's order. Paragraph 1 of her order reads that: “The Allegations are not pleaded in paragraph 57.9 of the Claimants’ Re-Re-Re-Re Amended Particulars of Claim.” “Allegations” is a defined term referring to the allegations advanced at paragraphs 5, 266.3 and 266.4 of the Claimants’ trial skeleton.[40]Paragraph 2 of the order reads:
“Accordingly the Allegations may not be deployed as part of the Claimants’ case at trial.”
[41]Mr. Bloch developed or began to develop a submission that even if we were against him in his appeal from paragraph 1 of the order, that is to say if we concluded, as we now have, that the allegations relating to child sexual abuse material are not pleaded, it should nevertheless be possible for the Claimants to deploy the Allegations as part of their case at trial. However, as was pointed out in the course of argument, there is no ground of appeal to suggest that as a separate point. Nor was the point developed in the Claimants’ skeleton argument for this appeal. In the event, perhaps because counsel appearing before us are not, or at least Mr. Bloch is not trial counsel in the ongoing trial, it is difficult to know what if any real significance that point has. As it is, we will simply dismiss the appeal from the judge's order.[42]I am glad that we have been able to hear this appeal without there being too much disruption to the trial. The Court of Appeal will always do what it can to hear cases of genuine urgency at short notice. In this case, the Claimants’ appellants’ notice is dated 12th June 2025, that is to say last Thursday, and the appeal has been heard and judgment has now been given within only two working days. (For continuation of proceedings: please see separate transcript) - - - - - - - - - -

Cited in 1 later judgment