High Court grants Getty permission to appeal copyright aspects of Gen AI claim

The UK High Court has granted Getty Images permission to appeal certain aspects of the court’s findings in Getty’s copyright infringement claim against generative AI provider, Stability AI.

Background

As readers of this blog will know, on 4 November 2025, the UK High Court handed down its much-anticipated decision in Getty Images v Stability AI (see blog). Whilst the scope of the case ended up being much narrower than initially expected, after Getty dropped its claims for primary copyright and database right infringement at the end of the trial, the court’s views on Getty’s claims of secondary copyright infringement were keenly awaited. 

Secondary infringement of UK copyright

Secondary infringement is targeted at downstream dealings with copyright-infringing goods. Sections 22 and 23 of the Copyright, Designs and Patents Act 1988 (CDPA) provide that importing or dealing with an article that is, and which the person importing or dealing with that article knows or has reason to believe is, an infringing copy of a work is an act of secondary infringement. 

“Infringing copy” is defined in Section 27 of the CDPA. Importantly, for these purposes, Section 27(3) states that “[a]n article is also an infringing copy if […] (a) it has been […] 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…”.

Relying on these provisions, Getty argued (amongst other things - see our earlier briefing), that Stable Diffusion is an “infringing copy” because it has been imported (downloaded) into the UK and its making in the UK would have constituted an infringement of Getty’s copyright (although it didn’t argue that the model itself is, or includes, a copy of any of its copyright works, relying instead on an interpretation that Section 27(3) does not require a copy). 

The court ultimately rejected Getty’s argument around the letter of the legislation on the ground that, by its nature, an infringing copy must be exactly that – a copy. Stable Diffusion was found to have never contained or stored copies of any of Getty’s copyright works. It was not, therefore, an infringing copy and Getty’s claim for secondary copyright infringement failed on that basis. The fact that copies of Getty’s works may have been used in developing that model did not, the court said, change that.

Grounds of appeal

As foreshadowed in our recent briefing, Getty sought permission to challenge the court’s findings on secondary infringement, particularly the meaning of “infringing copy”. This was on the grounds that the High Court had not given sufficient weight to the explicit wording of Section 27(3) of the CDPA in reaching its conclusion that an “infringing copy” has to be a copy. The High Court granted Getty permission to appeal on that basis, finding that the appeal has a real prospect of success and that the point of law in question is both novel and important, having “potentially far-reaching ramifications for AI models and intangible articles such as software more generally”.

Getty does not, however, appear to be challenging (in the alternative) the court’s conclusion that Stable Diffusion was not a copy of, nor did it contain copies of, Getty’s works. Such a challenge would probably require a line of argument that is, strictly speaking, unavailable to them as Getty did not actually assert that Stable Diffusion contains copies of any of Getty’s copyright works, nor did it provide any evidence of its copyright works having been memorised by the model.

Comment

Given what’s at stake and how much Getty has spent in pursuing its claim to date (reportedly around £7 million), it is not surprising that it sought permission to appeal, nor that the High Court granted such permission. 

As expected, the scope of the appeal appears to be relatively narrow. However, given most generative AI models are trained and developed outside the UK and only access the UK market at a later stage, once the model is ready, this question regarding secondary infringement remains an important one for the Court of Appeal to answer. 

That said, if the Court of Appeal does side with Getty’s interpretation of “infringing copy”, it will then have to decide whether making Stable Diffusion in the UK would have constituted an infringement of Getty’s copyright, which, in turn, could shed light on the Court of Appeal’s views on similar questions that would arise in a primary infringement context. 

As always, lots to look forward to!