The Briefing by the IP Law Blog: Getty Images Sues Stability AI for Copyright Infringement in Stable Diffusion Training

On the latest episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss the lawsuit filed earlier this year by global visual content creator Getty Images against startup technology company Stability AI for allegedly scraping over 12 million photographs from Getty’s portfolio without consent or compensation.

Getty Images claims that Stability AI copied its photographs and associated text and metadata to train its Stable Diffusion model, which uses AI to generate computer-synthesized images in response to text prompts. The alleged act is said to constitute copyright infringement, provision of false copyright management information, removal or alteration of copyright management information, trademark infringement, unfair competition, trademark dilution, and deceptive trade practices under Delaware law.Getty Images earns revenue by licensing the right to use its assets to businesses and consumers. Stability AI, on the other hand, created an image-generating platform called Stable Diffusion, which relies on various images to generate a synthesized version of the user’s requested image. Getty Images claims that its assets are highly desirable for use in connection with AI and machine learning, and it has licensed millions of digital assets to technology innovators for various purposes.

However, Stability AI allegedly did not attempt to negotiate a license with Getty Images for the content but instead copied the images without Getty’s consent, which, according to Getty, constitutes clear copyright infringement.

Many AI technology companies believe that using copyrighted materials to train an artificial intelligence platform constitutes fair use under United States copyright law. The fair use doctrine takes several items into consideration when determining whether a use was fair. The purpose or nature of the use and whether the allegedly fair use has an effect on the market for the protected work are two of the most significant factors. It remains to be seen how the courts will apply the fair use doctrine in the context of AI technology, but it may be the case that using copyright-protected works to train a platform constitutes fair use, while using it to generate new content may not.

Clarity to Come, Perhaps

It is a complex issue dealing with sophisticated technology. However, the Supreme Court’s decision in the Andy Warhol Foundation for the Visual Arts v. Goldsmith case, currently before the Court, will likely affect some of the issues in this context. The Court will seek to provide clarity on the scope of the fair use doctrine and how different a work must be from the original protected work to be considered transformative and therefore not infringing. The decision will have far-reaching implications for creators, as well as some AI technology companies.

Getty Images’ lawsuit against Stability AI highlights the issue of copyright infringement and fair use in the context of AI and machine learning. While the fair use doctrine is a multi-factor analysis that takes several items into consideration when determining whether a use was fair, it remains to be seen how the courts will apply it in this context. The Supreme Court’s decision in the Andy Warhol case may provide clarity on the scope of fair use and how transformative a work must be to be considered non-infringing. The decision will have significant implications for creators and AI technology companies alike.

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