What has happened?
In December 2025, trial judge Mrs Justice Joanna Smith DBE, granted Getty permission to appeal the dismissal of its secondary copyright infringement claim. However, Stability was refused permission to appeal the (limited and historic) findings of trade mark infringement. Here, Louise Popple and Morgan Acton consider all things relating to the appeal.
What is the secondary copyright infringement claim?
Getty's secondary copyright infringement claim is that Stability has infringed by importing/distributing in the UK an 'article' (namely, the Stable Diffusion model) which is - and which Stability knew or had reason to believe is - an 'infringing copy' of Getty's Copyright Works (under ss. 22 and 23 CDPA).
What won't the court decide?
The appeal will focus on the meaning of the term 'infringing copy' (and probably also the meaning of the term 'article') in ss. 22 and 23. However, it will not address whether Stable Diffusion stores copies of the works on which it was trained. This is because Getty did not allege at first instance that Stable Diffusion stores (or effectively stores) copies of its copyright works (probably for the reasons discussed in our article). We'll have to wait for another case for the UK courts to consider the issue. In this respect, the Getty case is quite different from the German GEMA case (article here).
What will the court decide?
The appeal will focus on whether or not an 'article' can be an 'infringing copy' even if it does not contain (and never has contained) copies of the copyright works. Getty argued that it could, relying heavily on the wording of s.27 CDPA, which provides that an 'article' is an 'infringing' copy if "…it has been or is proposed to be imported into the [UK] and its making in the [UK] would have constituted an infringement of the copyright in the work in question…". At first instance, Getty argued that the 'article' (the Stable Diffusion model) could not have been made without the use of the infringing copies (stored in the training dataset) such that the model itself satisfies the definition of an 'infringing copy' in s.27.
What did the judge find at first instance?
At first instance the judge ruled that, while an 'article' can be something intangible, like an AI model, it cannot be an 'infringing copy' if (as conceded by Getty) it does not (and never has) stored copies of the copyright works alleged to have been infringed. More specifically, she held that ss.22 and 23 are concerned with downstream dealings in an 'article' that is a 'copy', not with a process which (while it may involve acts of infringement) ultimately produces an 'article' which is not itself an 'infringing copy'.
What's the basis of the appeal?
Getty appeals on the basis that the judge erred in law in finding that an 'infringing copy' must be a copy. Getty argues that the judge made errors by:
- ignoring the clear and straight-forward definition of 'infringing copy' in s.27
- ignoring the 'development' of Stable Diffusion and focusing on its final iteration (para 600)
- finding that s.27 requires the 'article' that is made to be a copy when that section contains no such requirement (paras 597 and 601)
- finding that s.27 is "not concerned with a process which (while it may involve acts of infringement) ultimately produces an article which is not itself an infringing copy” (para 601) – Getty contending that this argument is circular, unsupported by any analysis of what the word "making" means and contrary to the express wording of s. 27
- holding that the word "making" in s.27 means the act of production of the intangible record of the information and not the act of making the model weights as such (para 601)
- relying on the meaning of the word 'copy' in s.17 to construe the definition of 'infringing copy' in ss.22, 23 and 27 (paras 596 and 601)
- wrongly applying the G4S v G4S Trustees and Sony v Ball decisions (paras 596 and 598)
- not taking into account the purposive interpretation and policy considerations advanced by Getty (para 602).
Why has permission to appeal been granted?
The judge granted permission to appeal on the basis that Getty's claim has "a real prospect of success" and relates to a "novel and important" point of law that "has potentially far-reaching ramifications for AI models and intangible articles such as software more generally". In other words, both potential grounds for granting permission to appeal were satisfied here. She added that, "That does not necessarily mean that I accept that every single one of the proposed grounds of appeal has a real prospect of success, but I see no reason to salami-slice them now."
How might the Court of Appeal construe the term 'infringing copy'?
This is difficult to predict as the legislation is not completely clear-cut and the position is arguable either way. While the Court of Appeal is currently quite IP-owner friendly and not afraid to make 'big' decisions, it will presumably be mindful of the broader consequences of a finding that an 'infringing copy' can be something that is not itself actually a copy. For example, it could mean that there is secondary infringement where an 'article' is produced with the benefit (anywhere in the process) of an infringing work, subject to the knowledge and other requirements. That would have significant potential implications including for the potential liability of third parties.
What other issues will the Court of Appeal consider?
We do not know yet, but it's likely that Stability will ask the Court of Appeal to reconsider the trial judge's finding that an 'article' can be something intangible like an AI model. (Stability need not raise that as a separate cross-appeal; it can simply be raised in its respondent's notice.)
It's quite possible that the Court of Appeal – if asked - could hold that the judge's findings were wrong on this (for the reasons discussed in our article). This is particularly so if the Court deems it permissible to look outside of the CDPA to what was said in records of parliamentary debates when the CDPA was being enacted. In other words (rightly or wrongly), there could be the same end result on appeal but for different reasons.
What if the Court of Appeal finds infringement?
What wasn't explored extensively at first instance are the consequences of a finding of secondary copyright infringement. Getty's argument appears to be that it is the model weights that constitute both the 'article' and the 'infringing copy'. Those model weights are only 'imported' and 'distributed' in the UK for the downloadable version of the model. They are held on servers based outside of the UK where the web-based version of the model is concerned. Presumably, the latter would be deemed non-infringing (giving Stability a work-around even if it loses on secondary copyright infringement). However, we will need to see if Getty comes up with any arguments that even the web-based version of the model infringes.
The more one considers this difficult issue, the more it becomes arguable that the current primary and secondary copyright infringement regimes in the UK need further thought – and perhaps the more likely it is that the Court of Appeal will find that intangible infringements of the type in question here were intended to be dealt with as part of the primary, not the secondary, liability regime.
Why was Stability refused permission to appeal the trade mark infringement ruling?
The trial judge refused Stability permission to appeal the trade mark infringement findings, which were limited to legacy model versions only, as she held there was no real prospect of a successful appeal. Two of the grounds of appeal raised by Stability related to pure questions of fact and were considered 'neither wrong nor rationally insupportable'. The third ground related to the identification of the average consumer, with the judge holding it unlikely that Stability could establish on appeal that her findings were 'one no reasonable judge could have arrived at'.
Will Stability request permission from the Court of Appeal?
Stability might seek permission to appeal the trade mark ruling directly from the Court of Appeal. Despite filtering out watermark use, it may wish to challenge the infringement finding to clarify the risks of trade mark use in AI outputs generally. Conversely, it might decide to 'cut its losses' on the basis that it would prefer not to have a Court of Appeal ruling on the issue. This is particularly so as the potential grounds of appeal are quite limited.
If Stability requests - and is granted – permission to appeal the trade mark infringement ruling from the Court of Appeal, then the Court will also have to consider whether or not to grant Getty permission to appeal the dismissal of its reputation-based (tarnishment and dilution) trade mark infringement claim (which Getty raised as a contingent appeal).
What about remedies?
There will be a separate inquiry as to damages for the trade mark infringement findings (subject to a possible appeal). Stability has given undertakings to address the finding - an injunction was not deemed necessary. Notably, Getty must pay 69.4% of Stability's costs, including an interim payment of almost £4.4 million, making Getty's trade mark victory financially pyrrhic.
When can we expect a final decision?
Appeals to the Court of Appeal are currently proceeding to a hearing within about 7-15 months of the original decision date (here, 4 November 2025), with the appeal decision being issued within about 1-2 months of the hearing. That could mean the appeal being heard at the end of this year, perhaps with a decision this time next year.
This article was co-authored by Morgan Acton.
