The High Court has now ordered that Getty Images (Getty) may pursue its claim against Stability AI (Stability) as a representative action on behalf of individuals who were a party to specified exclusive licence agreements (the Exclusive Licence Agreements). This comes hot on the heels of rejecting a proposed representative action in this case last month – see our recent blog.
Background
In this case, Getty claims that Stability has infringed copyright by scraping images in which the copyright is owned or exclusively licensed to Getty, and by using them as input to train its generative AI model. Getty claims that the output of the AI model is also infringing.
In its judgment on 14 January 2025, the High Court refused to allow a ‘same interest’ representative action to proceed under CPR 19.8 on the basis that the class of copyright owners was not specific enough.
In the same judgment, the court also refused the informal application to allow the representative case to proceed in the absence of joinder of owners of copyright who had concurrent rights of action, pursuant to CPR 19.3 and S102(1) Copyright, Designs and Patent Act 1998 (CDPA). However, the Court left open the door to permitting a representative action under CPR 19.3(1) and S102(1) CDPA in the future, saying that such an order would in many ways ‘make very good sense’, if it could be satisfied there was no risk of Stability being exposed to future claims outside the representative action for the same subject matter. In this regard, the Court said it was hard to see what ‘possible downside’ there could be to Getty providing an undertaking to take on the risk to Stability of potential future claims by a licensor outside of the representative action. However, at the time of the hearing, Getty had refused to provide such an undertaking.
Revised application by the Claimants under CPR 19.3
After the hearing, the Claimants formally applied for an order to permit a representative action under CPR 19.3(1) and S102(1) CDPA, on behalf of individuals who were party to the Exclusive Licence Agreements. As part of this application, Getty provided an undertaking to:
- indemnify Stability against damages and legal costs Stability might reasonably incur as a result of subsequent proceedings (ie, outside the current representative action) brought by any copyright owner who is entitled to the remedies claimed by Getty as a result of being party to the Exclusive Licence Agreements, and
- take reasonable steps to assert and enforce the ‘right to control claims’ clause in the Exclusive Licence Agreements (which grants Getty the right to control claims on behalf of the Exclusive Licensors), against any copyright owner who is entitled to the remedies claimed by Getty in the Proceedings (i.e., those captured by the representative action).
Essentially, Getty took onboard the indications given by the Court, as reflected in the judgment, and addressed its concerns by providing the undertakings sought.
The Court therefore ordered that Getty’s claim on behalf of the Exclusive Licensors can proceed without them being joined as parties, pursuant to CPR 19.3(1) and s102(1) CDPA.
Key takeaways
The Order, alongside the previous judgment, exemplifies the Court’s desire to balance case management of mass claims, on the one hand, with the need to ensure fairness and certainty for Defendants, on the other. The approach adopted in this latest order makes very clear that, before permitting a representative action, the Court will need to be satisfied that allowing a case to proceed without joinder of copyright owners will not expose Defendants to the risk of future claims outside the representative action.
Of course, this is not the end of the matter and ultimately the breadth of the class of licensors represented by Getty may be considerably narrowed if Stability’s defence that the agreements relied upon are not exclusive licences succeeds.
Further, while the bespoke statutory rules which apply to exclusive copyright licensees offered the Court a workaround in these types of cases, it remains to be seen how the courts will approach other attempted mass claims outside the competition sphere. It also remains to be seen what impact the Intellectual Property Office’s latest consultation on AI and copyright will have on claims of this nature – particularly given the proposed exemption to copyright laws for training AI models.