Representative claim not permitted in AI litigation

Getty Images (US) Inc and Ors v Stability AI Ltd [2025] EWHC 38 (Ch)

In a reserved judgment in Getty Images v Stability AI, the UK High Court has confirmed that the one of the claimants may not act in a representative capacity on behalf of over 50,000 photographers and content contributors. The rules for bringing representative claims are contained in CPR 19.8 and a crucial element is that the represented parties must share the “same interest”, which the court found not to be present.

Background

The first five claimants in this action are various Getty Images entities. Getty Images licence content (generally, photographs, video footage, illustrations, and associated captions) to creative, corporate and media customers. It is Getty’s position that this content is comprised of copyright-protected works.

The defendant, Stability AI, is an open-source generative artificial intelligence company. The dispute concerns Stability AI’s deep learning AI model, Stable Diffusion, which generates synthetic image outputs in response to a user’s commands. Broadly, speaking, Getty’s alleges that Stability AI has infringed copyright in Getty copyright works in the following ways:

• by downloading those works on to servers in the UK during the training of Stable Diffusion;
• by importing the pre-trained Stable Diffusion software into the UK; and 
• by the synthetic image outputs accessed by UK users reproducing a substantial part of Getty’s copyright works.

There are also claims of database right infringement, trade mark infringement and passing off, but these were not part of the representative claim.

The sixth claimant in the action is Thomas M Barwick Inc., which exclusively licenses copyright works to Getty Images. It attempted to bring a representative claim on behalf of the aforementioned photographers and content contributors, on the basis that:

“…the class of persons represented by the Sixth Claimant are those who are owners of the copyright subsisting in artistic works and film works that have been licensed on an exclusive basis to the First Claimant, the copyright in which has been infringed by the Defendant. The persons that fall within such class can be identified on the basis that (i) they have entered into an exclusive licence with the First Claimant in respect of artistic works and/or film works; and (ii) the exclusively licensed works include works which were used to train Stable Diffusion, as alleged in paragraph 34 of the Particulars of Claim"

The claimants accepted that not all of the exclusive licence agreements for these photographers and content contributors were the same. However, they asserted that “each of the Represented Parties have the same licensing terms in the respect which is material for the purpose of CPR 19.8, that is that the relevant content is licensed to the First Claimant exclusively in (at least) the UK" and that any diversity of interest could be resolved as part of a subsequent quantum assessment, following the establishment of liability.

The reserved judgment

Stability AI applied for an order that the sixth claimant may not act as a representative party. It asserted that the sixth claimant did not share the same interest as the individuals in the proposed class. It also asserted that each of: (1) identifying whether such individuals’ content had been used to train Stable Diffusion, (2) whether their copyright had been infringed, and (3) whether they would be entitled to damages, would require an individual assessment. So the sixth claimant believed that the action could proceed on a representative basis.

The court needed to decide whether the class identified by the sixth claimant had the same interest as the sixth claimant, and was adequately defined.

The court’s view was that the sixth claimant’s proposed definition of the class of represented persons did not identify a common interest of the kind necessary for a representative action under CPR 19.8. This was because it defined the relevant class of persons by reference to their copyright works having been infringed by Stability AI, but that could only be determined at trial and would therefore depend upon the outcome of the action.

However, the sixth claimant asserted that membership of the class did not depend upon a finding of infringement by the court; rather it depended upon whether persons had entered into an exclusive licence with the first claimant in respect of artistic works or film works and whether those works had been used for the training of Stable Diffusion, both of which were matters of objective fact, capable of being determined ahead of the trial. The difficulty for the claimant here was that there was no list of which copyright works had been used to train Stable Diffusion and the parties had been unable to reach any consensus on identifying them (the defendant had made only limited admissions in this respect).

As a result the court felt that it did not have jurisdiction to permit a representative claim, but even if it wrong about that, it would not be minded to exercise its discretion to permit the representative claim, given the problems with the proposed definition. Ultimately, the court was not satisfied that permitting a representative claim would remove the need for an expensive and time-consuming individualised assessment of numerous issues of liability and quantum or avoid creating a very significant case management burden for the court (i.e., following the trial on liability, trying to work out membership of the class, ownership and assessing damages for each individual).

As a fall-back position, the claimants argued that permission should be given to allow the claimants to pursue the claims of the content creators without joining them to the proceedings, pursuant to CPR 19.3. This rule requires all parties jointly entitled to a remedy to be parties to proceedings unless the court orders otherwise.

In a similar vein, under Section 102(1) of the Copyright, Designs and Patents Act 1988 (“CDPA”), any action for infringement by a copyright owner or exclusive licensee may not, without leave of the court, proceed unless the other is added as a party to the action. Exclusive licensees are granted concurrent rights of action under Section 101 of the CDPA. So the claimants here argued that the court should grant leave to allow the action to proceed without having to add all of the exclusive licensees to the action.

This was refused on primarily procedural grounds, since the claimants had not made a formal application properly supported by evidence.

Comment

The conclusion in this decision is perhaps unsurprising, particularly following the strict rules laid down for representative claims by the Supreme Court in Lloyd v Google. There are, however, two noticeable points to take away.

The first is the court’s comments around case management. In the course of making this reserved judgment, the court referred to several problematic case management issues, and, while showing a degree of sympathy to the parties, urged them to attempt to resolve them. The sheer volume of copyright works potentially involved in training diffusion models (and LLMs generally), the complex way in which these models work, and also the novel nature of this case – being the first of its kind in the UK courts – means that there is inevitably a learning curve.

The second is what appears to be an ‘encouragement’ by the judge of a further attempt by the claimants to bring a claim on behalf of the individual rightsholders, without joining them to the proceedings, by saying an order under CPR 19.3 “would make very good sense”.