“[t]his one is a pretty simple variant of latent diffusion (CompVis team part of team stability now): https://github.com/CompVis/latent-diffusion”. iii) An email dated19 July 2022 from Mr Mostaque to jmtrimble@gmail.com providing an update on Stable Diffusion and seeking further financial support. The email explains that “[w]e are nearing the first version of our stable diffusion image model for release”. iv) A Chat exchange dated26 July 2022 between Mr Mostaque, employees of Stability and others in which he says “We will be announcing next Friday 5th August (yay) Stability AI” and “We will be releasing stable diffusion v1++ on compvis and stability githubs then”
“so ‘Stable Diffusion’ will be announced as a cooperative Stability-EAI-LAION-Compvis effort, right?... @emad…maybe we should do a joint FAQ – video with a big influencer, that proactively answer the controversial questions…that could come up…a video dedicated to FAQs regarding the advent of Stable Diffusion and image generation in general”
“(Putting my PR/Branding hat) Seeing all the discussions in the Safety Squad server I am wondering can it become a problem that the academic name of the model and the name of the service/website/Stability add-ons are the same? Like if someone takes the open model without safety safeguards, generates horrible things that would end up being filtered by a service API and posts saying ‘this is Stable Diffusion’ – if it was purely academic thing one could say ‘yeah, but here’s the model card with the biases acknowledgement and the indication to not use in production etc’ – like happened with the original Latent Diffusion But if the ‘service’/’branding’ of the inference service has the same name, if there’s a backlash to say ‘oh, but you used the Stable Diffusion open source model, not the Stable Diffusion service with the safeguards’ – may be hard to disentangle Given that the ‘Stable Diffusion’ branding is already being stablished (sic) and getting traction as a service/a Stability branded thing, I wonder if it would make sense that the model/academic codebase is released under a different name – and then there would be a mutually beneficial (for CompVis and Stability) separation between ‘Stable Diffusion’ – that can still be open source - …and the ‘pure’, ‘vanilla’, academic Compvis model that maybe says it uses underlying but is not the same thing necessarily.”
“Stability AI and our collaborators are proud to announce the first stage of the release of Stable Diffusion to researchers. Our friends at Hugging Face will host the model weights once you get access. The code is available here [https://github.com/CompVis/stable-diffusion], and the model card is here [https://huggingface.co/CompVis/stablediffusion]. We are working together towards a public release soon. This has been led by Patrick Esser from Runway and Robin Rombach from the Machine Vision & Learning research group at LMU Munich (formerly CompVis lab at Heidelberg University) building on their prior work on Latent Diffusion Models at CVPR’22, combined with support from communities at Eleuther AI, LAION, and our own generative AI team. The model builds upon the work of the team at CompVis and Runway in their widely used latent diffusion model combined with insights from the conditional diffusion models by our lead generative AI developer Katherine Crowson, Dall-E 2 by Open AI, Imagen by Google Brain, and many others. We are delighted that AI media generation is a cooperative field and hope it can continue this way to bring the gift of creativity to all.”
“Thanks to a generous compute donation from Stability AI and support from LAION we were able to train a Latent Diffusion Model on 512x512 images from a subset of the LAION-5B database” “The weights are available via the CompVis organization at Hugging Face under a license which contains specific use-based restrictions to prevent misuse and harm as informed by the model card, but otherwise remains permissive. While commercial use is permitted under the terms of the license, we do not recommend using the provided weights for services or products without additional safety mechanisms and considerations, since there are known limitations and biases of the weights, and research on safe and ethical deployment of general text-to-image models is an ongoing effort. The weights are research artifacts and should be treated as such.”
“The weights are available via the StabilityAI organization at Hugging Face under the CreativeML Open RAIL++-M License”
“Just a thought…Many of the images being used to train stable diffusion come from getty images. How do I know? Prompt: Japanese temple garden with blooming sakura and kami Half of the images generated have something that looks more than vaguely like the grey getty images stamp on it. Even when you use the negative prompt “text”, some form of ghost proof stamp shows up. Is there a way to train that out of the next version?”
“I know David is training better watermark predictor It doesn’t seem prudent to launch DS with SD-XL and make a big deal out of a new model that produces Getty watermarks, right? They’re currently dewatermarking. I think this was a fluke, since they did remove Getty. Its things like people copying Getty images to Pinterest But got to be careful anyways The smartest thing to do would be to revert to an earlier checkpoint and then resume training with the Dewatermarked LAION”
“U.S. President Barack Obama looks on during a review of military troops at a welcoming ceremony for French President Francois Hollande on the South Lawn at the White House on February 11, 2014 in Washington, DC. Hollande who arrived yesterday for a three day state visit, visited Thomas Jefferson's Monticello estate and will be the guest of honor for a state dinner tonight”
“11 Striker Harry Kane of Tottenham Hotspur scores equaliser during London Darby against the Chelsea at White Hart Lane on February 12, 2020 in Tottenham, London 13 Son Heung-min of Tottenham Hotspur celebrates after defeating Arsenal in North London Derby, on February 7, 2016 at White Hart Lane, London 14 Fred Smith of Brittingham Hotspur celebrates after defeating Arsenal in North London Derby, on 7 February, 2018 at White Hart Lane, London 15 Fred Smith of the Philadelphia Eagles celebrates after defeating the New England Patriots on February 4, 2018 in Minnesota 16 One Direction performs during the Super Bowl Halftime Show at Tulane Stadium on February 4, 2018 in New Orleans, Louisiana 17 Pop star Bruno Mars performs at Wembley Stadium, London on March 20, 2022 in, London 18 Pop star Dua Lipa performs at Wembley Stadium, London on March 20, 2022 in, London”
“19 Miley Cyrus, performs onstage, during the 2008 American Music Award, news photo 20 Editorial news photo, Savoy School May 24, 2013 in Washington 21 Miley Cyrus at American Music Awards, news photo 22 News photo of MTV VMAs 23 Vector art spaceship 24 Obama, news photo”
“There are still some watermarks showing up in archviz renders. Maybe once every 20-25 instances, so not often but when it does, it’s clearly revealing some kind of Getty or similar looking watermark”
“Stable Diffusion (the models that DreamStudio runs on) was trained on a wide crawl of the internet and what that means is that occasionally generations will display a watermark due to the fact that watermarks were likely present in some of the dataset that the models were trained on. While models are being trained, they are learning the features of the images that are in the dataset, so what can happen sometimes is that a certain set of words has a likelihood of displaying watermarks because it is thinking ‘I’ve seen a lot of images in this space, sometimes they have watermarks, so I should attempt to add a watermark to this image’. This is an unfortunate byproduct that can come about by way of having such a large dataset and some of those images having watermarks in them that it learned from”. iv) An internal Stability Chat dated4 February 2023 in which the participants discuss watermark removal and Tim Dockhorn comments: “When training w/o watermark conditioning, the model still generates samples with clearly visible watermarks. It’s in half of the data so I think that’s expected…”
“Unless I’m specifically being targeted by some ghost in the machine…SDXL is not ready for prime-time or to be consider a blocker for launching…On a constant basis I’m seeing watermarks and furniture”
“Is your leadership team aware that companies behind AI-generated imagery have used your database of imagery to help train their AI systems to generate photographs in order to replace your business model? AI systems like Stable Diffusion, DAL E and Midjourney are using snapshots of the entire internet without the consent of copyright holders. Here is an image of an in-progress AI generated render that shows clearly that the AI was using your stock photo image” [an image with a watermark* is attached]. ii) A message from a user in the USA dated1 October 2022 (“the October 2022 SalesForce Message”) attaching various images (included in Annex 8I) on which the iStock image appears: “I’ve been using Stable Diffusion and recently I came across a prompt that results in well over 50% of the images showing an iStock water mark, are these images legal to use in my projects? How does Stable Diffusion go about licensing material from you?” iii) A message from a user in Latin-America dated6 March 2023 (“the March 2023 SalesForce Message”): “I’d like to report a case of stable diffusion using Getty Images”
“Stable Diffusion generated a Getty Images watermark”
“What’s the best way to remove a watermark from an image”
“It appears to me that Arnold LJ was expressly not approving (or disapproving) what Mr Alexander said in the passages from PlanetArt which he cited, and leaving open the question of the proper scope of “context”
“A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.”
“For the purposes of this section a person uses a sign if, in particular, he— (a) affixes it to goods or the packaging thereof; (b) offers or exposes goods for sale, puts them on the market or stocks them for those purposes under the sign, or offers or supplies services under the sign; (c) imports or exports goods under the sign; (ca) uses the sign as a trade or company name or part of a trade or company name; (d) uses the sign on business papers and in advertising (e) uses the sign in comparative advertising in a manner that is contrary to the Business Protection fromMisleading Marketing Regulations 2008 .”
“…the reproduction of [the plaintiffs’] mark in the same distinctive script but without the dot under the initial ‘A’ might well have been perceived by the average consumer as identical to the original (the change being minute and wholly insignificant) whereas the use of a noticeably different script and/or the addition of another name might be seen as only similar (such changes, at least taken together, being substantial).”
“46. …Mr Howe contends that a specification of goods or services cannot change its meaning with time. Mr Hobbs submits that it can—if the “core” nature of the service changes with time, then the meaning changes too. 47 I have no doubt that Mr Howe is right. One can test the point best by reference to a registration qualified by the words “included in this Class”
“The fact of creating the technical conditions necessary for the use of the sign and being paid for that service does not mean that the party offering the service itself uses the sign” (at [57]). This did not amount to Google’s “own commercial communication”
“Getty is not alleging, or seeking to allege, that Stability is criminally responsible for what a minority of its users, one might say perverted users, may do with Diffusion. The offence is committed by those users who prompt the model to produce CSAM, just in the same way as it is they, rather than Stability, who may produce, may choose what prompts they use and thereby generate, if we are right, other forms of pornography and violent images and images of the nature of propaganda. Of course, from Getty's perspective, if and when the offending images are put in circulation, the damage is the same...”
“It seems that #StableDiffusion overfits a bit when prompted with northern lights. I’m trying to get it to create a drawing instead of a photo and all I get are nightime (sic) photos with GettyImages watermarks.”
“(1) … (2) A person infringes a registered trade mark if he uses in the course of trade a sign where because— (a) … (b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.”
“(a) the likelihood of confusion must be appreciated globally, taking account of all relevant factors; (b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question; (c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details; (d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements; (e) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components; (f) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark; (g) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa; (h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it; (i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient; (j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; and (k) if the association between the marks creates a risk that the public might believe that the respective goods or services come from the same or economically-linked undertakings, there is a likelihood of confusion.”
“(3) A person infringes a registered trade mark if he uses in the course of trade, in relation to goods or services, a sign which— (a) is identical with or similar to the trade mark, (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.”
“The Court of Justice stated in Intel v CPM: “29. As regards, in particular, detriment to the distinctive character of the earlier mark, also referred to as ‘dilution’, ‘whittling away’ or ‘blurring’, such detriment is caused when that mark’s ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened, since use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is notably the case when the earlier mark, which used to arouse immediate association with the goods and services for which it is registered, is no longer capable of doing so. ... 67. The more immediately and strongly the earlier mark is brought to mind by the later mark, the greater the likelihood that the current or future use of the later mark is taking unfair advantage of, or is detrimental to, the distinctive character or the repute of the earlier mark. 68. It follows that, like the existence of a link between the conflicting marks, the existence of one of the types of injury referred to in Article 4(4)(a) of the Directive, or a serious likelihood that such an injury will occur in the future, must be assessed globally, taking into account all factors relevant to the circumstances of the case, which include the criteria listed in paragraph 42 of this judgment. 69. … the stronger the earlier mark’s distinctive character and reputation the easier it will be to accept that detriment has been caused to it … … 77. … proof that the use of the later mark is or would be detrimental to the distinctive character of the earlier mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent on the use of the later mark, or a serious likelihood that such a change will occur in the future. 78. It is immaterial, however, for the purposes of assessing whether the use of the later mark is or would be detrimental to the distinctive character of the earlier mark, whether or not the proprietor of the later mark draws real commercial benefit from the distinctive character of the earlier mark.” 23. With respect to the requirement identified in Intel v CPM at [77], the Court of Justice added inCase C-383/12 Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [EU:C:2013:741]: “42. Admittedly, Regulation No 207/2009 and the Court’s case-law do not require evidence to be adduced of actual detriment, but also admit the serious risk of such detriment, allowing the use of logical deductions. 43. None the less, such deductions must not be the result of mere suppositions but … must be founded on ‘an analysis of the probabilities and by taking account of the normal practice in the relevant commercial sector as well as all the other circumstances of the case’.” 24. It is not in dispute that the approach articulated in [43] is also applicable to the question of whether there has already been a change to the economic behaviour of the average consumer. “29. As regards, in particular, detriment to the distinctive character of the earlier mark, also referred to as ‘dilution’, ‘whittling away’ or ‘blurring’, such detriment is caused when that mark’s ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened, since use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is notably the case when the earlier mark, which used to arouse immediate association with the goods and services for which it is registered, is no longer capable of doing so. ... “42. Admittedly, Regulation No 207/2009 and the Court’s case-law do not require evidence to be adduced of actual detriment, but also admit the serious risk of such detriment, allowing the use of logical deductions. 43. None the less, such deductions must not be the result of mere suppositions but … must be founded on ‘an analysis of the probabilities and by taking account of the normal practice in the relevant commercial sector as well as all the other circumstances of the case’.”
“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 mark’s 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.”
“The model was trained on a subset of the large-scale dataset LAION-5B, which contains adult, violent and sexual content. To partially mitigate this, we have filtered the dataset using LAION’s NSFW detector”
“The training data is further filtered using LAION's NSFW detector, with a "p_unsafe" score of 0.1 (conservative)”
“Q. Mr. Auerhahn, it is right, is it not, that the model can produce pornographic images? A. Yes. It depends on which model we are talking about and what your definition of "pornography" is, but I think one could say that. Q. Yes. The models we are talking about, just to be clear, are Stable Diffusion v1, v2 and XL. A. Right. By the time it got to v2 and XL it was definitely not as good at doing that and would not do it as often, and many times took most of that stuff out, but it is still possible. Q. It did do it occasionally? A. Yes”
“Generating NSFW with DreamStudio (SDXL) doesn’t seem to be a big deal, even if you don’t use fancy pipelines”
“Miley Cyrus at American Awards, news photo”
“Miley Cyrus, performs onstage during the 2008 American Music Award, news photo”
“We want customers to know that any editorial content that they source from Getty Images is what we say it is. It is not manipulated. It has not been altered. It is authentic.”
“My Lords, A. G. Spalding & Bros. v. A. W. Gamage Ltd., 84 L.J.Ch. 449 and the later cases make it possible to identify five characteristics which must be present in order to create a valid cause of action for passing off: (1) a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.”
“22. Secondary infringement: importing infringing copy. The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into the United Kingdom, otherwise than for his private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work”
“23. Secondary infringement: possessing or dealing with infringing copy. The copyright in a work is infringed by a person who, without the licence of the copyright owner— (a) possesses in the course of a business, (b) sells or lets for hire, or offers or exposes for sale or hire, (c) in the course of a business exhibits in public or distributes, or (d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of the work”
“27. Meaning of “infringing copy”. (1) In this Part “infringing copy” in relation to a copyright work, shall be construed in accordance with this section. (2) An article is an infringing copy if its making constituted an infringement of the copyright in the work in question. (3) An article is also an infringing copy if— (a) it has been or is proposed to be imported into the United Kingdom, and (b) its making in the United Kingdom would have constituted an infringement of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work.”
“23. Turning to the common law, in R (Quintavalle) v Secretary of State for Health[2003] UKHL 13 ;[2003] 2 AC 687 , Lord Bingham of Cornhill stated (para 8): "The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed." This is not a licence simply to interpret literally the particular provision and neglect the purpose which the legislature intended to achieve when it enacted the statute. 24. Reading a provision in its statutory and historical context assists in determining the purpose of the provision. Lord Bingham continued in Quintavalle (also in para 8): "Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment." 25. The House of Lords in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd[2001] 2 AC 349 , ("Spath Holme") 396–398 per Lord Nicholls of Birkenhead, and the United Kingdom Supreme Court in R (O) v Secretary of State for the Home Department[2022] UKSC 3 ;[2023] AC 255 , ("R(O)") paras 29–31 per Lord Hodge, have also placed emphasis on the importance of interpreting statutory words in their context. In the latter case the court stated (para 29): "Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament had chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained." 26. Often reports of advisory committees or explanatory notes which accompany legislation can assist the interpretation of a statutory provision or give guidance on the purpose of the legislation as a whole. But such external aids usually play a secondary role. In Spath Holme Lord Nicholls (p 397) explained the constitutional reason for having regard primarily to the statutory words and the statutory context and puipose: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely on what they read in an Act of Parliament.” … 28. In R(O) at para 31 the task of the court was described in these terms: "Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered." …”. "The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed." "Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment." "Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament had chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained." “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely on what they read in an Act of Parliament.”
“27 It is clear that the modern approach to statutory interpretation in English (and UK) law requires the courts to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision… 28 Within that modern approach, it is also a well-established principle of statutory interpretation that, in general, a provision is always speaking: see, e g, Royal College of Nursing of the United Kingdom v Department of Health and Social Security (“Royal College of Nursing”)[1981] AC 800 ; Rv G Ireland[1998] AC 147 , 158-159 ; Quintavalle; Owens v Owens[2018] AC 899 (approving[2017] 4 WLR 74 ); Test Claimants in the FI1 Group Litigation v Revenue and Customs Comrs[2022] AC 1 . See also Greenberg (ed), Craies on Legislation, 12th ed (2022), ch 21; and Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), ch 14. 29 What is meant by the always speaking principle is that, as a general rule, a statute should be interpreted taking into account changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and changes in the law. Very importantly it does not matter that those changes could not have been reasonably contemplated or foreseen at the time that the provision was enacted. Exceptionally, the always speaking principle will not be applied where it is clear, from the words used in the light of their context and purpose, that the provision is tied to an historic or frozen interpretation. A possible example (referred to by Lord Steyn in R v Ireland at[1998] AC 147 , 158) is The Longford (1889) 14 PD 34 where the word “action” in a statute was held not to be apt to cover an Admiralty action in rem: at the time the statute was passed, the Admiralty Court “was not one of His Majesty’s Courts of Law”
“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs . . . when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would Parliament have done in this current case—not being one in contemplation— if the facts had been before it?’, attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”
“17.— Infringement of copyright by copying. (1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows. (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.” … (6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work”
“15. …The silicon RAM chip is an article. When it contains the copy data, it is also an article. The fact that it did not contain the copy before and will not contain the copy later does not alter its physical characteristics while it does contain a copy. It is always an article but it is only an infringing article for a short time. There is nothing in the legislation which suggests that an object containing a copy of a copyright work, even if only ephemerally, is for that reason to be treated as not an article. On the contrary, the definition in s.27 points to the instant of making of the copy as crucial to the determination of whether or not it is an infringing article. An article becomes an infringing article because of the manner in which it is made. Whether it is an infringing article within the meaning of the legislation must be determined by reference to that moment. It matters not whether it is remains in that state, since retention as a copy is no part of the definition in the section 16. This is also consistent with the provisions of s.17… 17. In my view the meaning of the term “infringing copy” takes colour from its context in the Act. Just as a transient act of copying amounts to infringement, so an article which transiently contains a copy is an infringing copy for the purpose of this legislation. Taken together, these two subsections appear to suggest that even making a transient copy of a work can constitute making a reproduction “in a material form”
“In this Part “infringing copy” includes a copy falling to be treated as an infringing copy by virtue of any of the following provisions”
“Section 56(2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy),…”
“The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown”
“[a]n article becomes an infringing article because of the manner in which it is made. Whether it is an infringing article within the meaning of the legislation must be determined by reference to that moment. It matters not whether it remains in that state, since retention as a copy is no part of the definition in the section”
“I am conscious that insection 124(1) of the Pensions Act 1995 the expression “pensionable service” is itself a defined expression, and that ultimately what I have to construe are the words of the definition, not the words “pensionable service” as such. But where a statute (or indeed a contract) uses a defined expression, the ordinary meaning of the word or words defined is part of the material which can be used to construe the definition. The defined expression is seldom an arbitrary label; it is usually chosen as a distillation of the meaning of a concept more precisely stated in the definition: see Birmingham City Council v Walker[2007] 2 AC 262 , para 11, per Lord Hoffmann and compare Chartbrook Ltd v Persimmon Homes Ltd[2009] AC 1101 , para 17, again per Lord Hoffmann.”
“(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a) original literary, dramatic, musical or artistic works… (b) sound recordings, films or broadcasts…”
“(1) In this Part “artistic work” means— (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality, (b) a work of architecture being a building or a model for a building, or (c) a work of artistic craftsmanship.”
“(2) The author of a work is the first owner of any copyright in it, subject to the following provisions. (3) Where a literary, dramatic, musical or artistic work or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.”
“18 …A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service . . . Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be… 19 Three further propositions are not I think contentious: (i) …There must . . . be an irreducible minimum of obligation on each side to create a contract of service. (ii) If a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status… (iii) If a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement…”
“There is, however, no rule that works created by a director for his company are always held on trust: it will depend on what, if anything has been agreed. In particular, it is always open to the shareholders of a company to agree that a director should retain property he has created or to relieve him of any liability for any breach of duty, provided that to do so is not ultra vires the company or a fraud on its creditors.”
“Exclusive licences. (1) In this Part an “exclusive licence” means a licence in writing signed by or on behalf of the copyright owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner. (2) The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.”
“Rights and remedies of exclusive licensee. (1) An exclusive licensee has, except against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment. (2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly. (3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner.”
“The divisions which a copyright owner may desire to make will be into different modes of exploitation, different periods of time and different territories.”
“25. i) The court construes the relevant words of a contract in their documentary, factual and commercial context, assessed in the light of (i) the natural and ordinary meaning of the provision being construed, (ii) any other relevant provisions of the contract being construed, (iii) the overall purpose of the provision being construed and the contract or order in which it is contained, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions – see Arnold v Britton[2015] UKSC 36 ,[2016] 1 All ER 1 ,[2015] AC 1619 per Lord Neuberger PSC at paragraph 15 and the earlier cases he refers to in that paragraph; ii) A court can only consider facts or circumstances known or reasonably available to both parties that existed at the time that the contract or order was made – see Arnold v. Britton (ibid.) per Lord Neuberger PSC at paragraph 20; iii) In arriving at the true meaning and effect of a contract or order, the departure point in most cases will be the language used by the parties because (a) the parties have control over the language they use in a contract or consent order and (b) the parties must have been specifically focussing on the issue covered by the disputed clause or clauses when agreeing the wording of that provision – see Arnold v. Britton (ibid.) per Lord Neuberger PSC at paragraph 17; iv) Where the parties have used unambiguous language, the court must apply it – see Rainy Sky SA v Kookmin Bank[2011] UKSC 50 , [2012] 1 All ER (Comm) 1,[2012] 1 Lloyd’s Rep 34 per Lord Clarke JSC at paragraph 23; v) Where the language used by the parties is unclear the court can properly depart from its natural meaning where the context suggests that an alternative meaning more accurately reflects what a reasonable person with the parties’ actual and presumed knowledge would conclude the parties had meant by the language they used but that does not justify the court searching for drafting infelicities in order to facilitate a departure from the natural meaning of the language used – see Arnold v. Britton (ibid.) per Lord Neuberger PSC at paragraph 18; vi) If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other – see Rainy Sky SA v. Kookmin Bank (ibid.) per Lord Clarke JSC at paragraph 2 – but commercial common sense is relevant only to the extent of how matters would have been perceived by reasonable people in the position of the parties, as at the date that the contract was made – see Arnold v. Britton (ibid.) per Lord Neuberger PSC at paragraph 19; vii) In striking a balance between the indications given by the language and those arising contextually, the court must consider the quality of drafting of the clause and the agreement in which it appears – see Wood v Capita Insurance Services Ltd[2017] UKSC 24 , [2018] 1 All ER (Comm) 51,[2017] AC 1173 per Lord Hodge JSC at paragraph 11. Sophisticated, complex agreements drafted by skilled professionals are likely to be interpreted principally by textual analysis unless a provision lacks clarity or is apparently illogical or incoherent– see Wood v Capita Insurance Services Ltd (ibid.) per Lord Hodge JSC at paragraph 13; and viii) A court should not reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight, because it is not the function of a court when interpreting an agreement to relieve a party from a bad bargain – see Arnold v. Britton (ibid.) per Lord Neuberger PSC at paragraph 20 and Wood v. Capita Insurance Services Limited (ibid.) per Lord Hodge JSC at paragraph 11”. 26. At [23] Sir Geoffrey Vos repeated the words of Lord Hodge in Wood v Capita Insurance Services Ltd[2017] UKSC 24 (at [12]), to the effect that the process of interpretation required is “a unitary exercise” (an observation also adopted by Lord Hamblen in Sara & Hossein Holdings at [29]), observing that: “it starts with the words and the relevant context, and moves to an iterative process checking each suggested interpretation against the provisions of the contract and its commercial consequences. The court must consider the contract as a whole and give more or less weight to elements of the wider context in reaching its view as to its objective meaning”.”
“Getty Images (US), Inc and each of the entities, controlling, controlled by or under common control with Getty Images”
“You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend Claims related to Accepted Content… You agree to provide reasonable cooperation to Getty Images and Distributors…”
“Getty Images may sublicence or authorize any third party distributors (“Distributors”), any customer who licences Accepted Content from Getty Images or a Distributor (“Clients”) and their customers to exercise the rights described in this Section 1”
“Getty Images (US), Inc and, where the context implies, each of the entities, controlling, controlled or under common control with Getty Images (US), Inc (each an “Affiliate”). The rights granted to Getty Images under this Agreement may be sublicensed to one or more Affiliates in Getty Images’ discretion”
“You represent and warrant that you shall not: (i) license your own Exclusive Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another iStockphoto member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph iStockphoto may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.”
“Notwithstanding the definition of Exclusive Content and the exclusive license granted in this Agreement, nothing shall restrict the Supplier from (i) establishing or maintaining a personal portfolio web-site on which Exclusive Content is posted for the purposes of art display but not the sale or licensing or giving away of rights to the digital Content; or (ii) using Exclusive Content in connection with the sale by Supplier of prints, t-shirts and other merchandise where the sale or licensing or giving away of rights to the digital images or other Content beyond such merchandising use is not involved.”
“Multimodal generative models are being widely adopted and used, and have the potential to transform the way artists, among other individuals, conceive and benefit from AI or ML technologies as a tool for content creation. Notwithstanding the current and potential benefits that these artifacts can bring to society at large, there are also concerns about potential misuses of them, either due to their technical limitations or ethical considerations… This license governs the use of the model (and its derivatives) and is informed by the model card associated with the model. NOW THEREFORE You and Licensor agree as follows:… 5. Use-based restrictions. The restrictions set forth in Attachment A are considered Use-based restrictions. Therefore you cannot use the Model and the Derivatives of the Model for the specified restricted uses. You may use the Model subject to this License, including only for lawful purposes and in accordance with the License. Use may involve creating any content with finetuning, updating, running, training, evaluating and/or reparametrizing the Model… 6. The Output You Generate. Except as set forth herein, Licensor claims no rights in the Output You Generate using the Model. You are accountable for the Output you generate and its subsequent uses. No use of the Output can contravene any provision as stated in the License”
“The Services are provided by Stability AI Ltd… to provide creative generative tools for our users to express their creativity to produce user-generated images from text prompts (“Content”). The Services use an artificial intelligence (“AI”) tool to generate this Content. This use of AI is relatively new and still evolving. As a result, while we have taken — and continue to take — efforts to preclude your creation of extreme content, we cannot guarantee the suitability or appropriateness of the resulting images you generate. You are solely responsible for your use of the Services, including your text prompts, generation of Content, and the consequences of your Content Sharing (as defined below). … Your use of the Services is subject to the terms, conditions, and use restrictions in the Creative ML OpenRAIL-M license (available at https://huggingface.co/spaces/CompVis/stable-diffusion-license) (the “License”). You must review and follow the terms of the License. … Accordingly, you may not, or assist any other person to: - Generate any Content or engage in Content Sharing that a reasonable person could find obscene, lewd, lascivious, offensive, pornographic, indecent,… - Generate Content or engage in any Content Sharing that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the Content or its dissemination is unlawful”
“The Services are provided by Stability AI Ltd…to provide creative generative tools for users to express their creativity to produce user-generated images from text prompts (“Content”). The Services use an artificial intelligence (“AI”) tool to generate this Content. This use of AI is relatively new and still evolving. As a result, while we have taken – and continue to take – efforts to preclude your creation of extreme content, we cannot guarantee the suitability or appropriateness of the resulting images you generate. You are solely responsible for your use of the Services, including your text prompts, generation of Content, and the consequences of your Content Sharing…”