Getty Images v Stability AI - permission to appeal sought by Getty Images at consequentials hearing

Copyright and AI lawyers continue to watch the widely-covered Getty Images v Stability AI case closely. We previously reported on the Court’s substantive judgment, in which it found in favour of Stability AI in relation to Getty’s claim for secondary copyright infringement – after Getty discontinued its primary copyright infringement and database right claims. We also reported on Getty’s narrow success on its trade mark infringement claims, limited to historic versions of Stability’s Stable Diffusion models (v1.x and v2.x).

At a consequentials hearing on 16–17 December 2025, Mrs Justice Joanna Smith dealt with follow-up issues, including permission to appeal, the form of the final order, and costs.

Permission to appeal on secondary copyright infringement

Getty applied for permission to appeal the dismissal of its secondary copyright infringement claim. Justice Smith granted permission in full.

In doing so, Justice Smith held that the appeal concerns a “pure question of law” on which “the minds of reasonable lawyers may differ”. Justice Smith further concluded that there was a compelling reason for the appeal to be heard, as the point of law is “both novel and important”.

The issue arises from the construction of the phrase “infringing copy” in the Copyright, Designs and Patents Act 1988 (“CDPA”) when applied to AI models. Justice Smith observed that this question has not been considered by any UK court previously and may have far-reaching implications, not only for generative AI models but also for intangible articles (such as software) more generally. Justice Smith concluded that the issue would plainly benefit from consideration by the Court of Appeal.

Getty has until 3 February 2026 to file an appeal. Should an appeal proceed, the Court of Appeal will have to decide if it agrees with Getty’s interpretation of “infringing copy”. If the Court of Appeal does find in favour of Getty, this could result in an AI model (or its weights) being considered an “infringing copy” where that model has been trained overseas on copyright works without authorisation, even if the model (or its weights) do not store or contain a copy of the relevant copyright works at the point of being imported into the UK. Such a finding by the Court of Appeal would have significant consequences for the technology sector and the creative industries, including the possibility of injunctive relief against distribution of any such AI tool in the UK and/or the payout of damages to the relevant rights holders. The outcome of such an appeal therefore has the potential to clarify the application of copyright law to AI models and influence future litigation in this fast-evolving area.

Whilst Justice Smith did not indicate that every proposed ground of appeal necessarily had a real prospect of success, she declined to “salami-slice” the grounds at this stage and granted permission in respect of all grounds advanced on the secondary copyright infringement claim.

No permission to appeal on trade mark infringement

By contrast, Stability was refused permission to appeal in relation to the Court’s findings on trade mark infringement under ss10(1) and 10(2) concerning the Stable Diffusion v1.x and v2.x models.

Justice Smith held that the three principal grounds advanced by Stability had no real prospect of success. Grounds 1 and 2 were characterised as attempts to re-argue factual findings, which the Court had reached after a detailed review of the evidence, including relevant concessions. Justice Smith held that those findings were neither wrong nor rationally insupportable.

Ground 3, which focused on the identification of the average consumer in the specific context of AI-generated watermarks, was also rejected. Justice Smith concluded that the arguments attributed an inappropriate level of sophistication to the average consumer and were unsupported by the evidence. Justice Smith reaffirmed that she had applied the correct legal test and that the proposed appeal amounted to no more than a submission that another judge might have taken a different view on the issue/point of law.

Penal notice refused on trade mark undertaking

Following Getty’s limited success on its trade mark infringement claims relating to historic models (v1.x and v2.x), Getty argued that the final order should include a penal notice to prevent future infringements by Stability or third parties.

Stability opposed this, emphasising that it had already given a voluntary undertaking not to infringe Getty’s trade marks in the future. The Court agreed that, in those circumstances, a penal notice was unnecessarily inflammatory and not appropriate. Justice Smith also noted that all relevant versions of the infringing models had been retired and were no longer accessible by the public, and that no evidence had been adduced as to the identity or role of any third parties who would require notice.

Discontinued copyright and database right claims to be dismissed

A further dispute arose as to whether Getty’s discontinued primary copyright infringement and database right claims should be recorded in the order as “discontinued” or “dismissed”.

Getty argued that recording the claims as dismissed could allow Stability to rely on the order in overseas proceedings, including ongoing litigation in the United States, by invoking principles of res judicata.

Stability argued that the claims had been pursued at vast expense through trial, including extensive cross-examination, and that Getty’s own correspondence acknowledged that the decision to abandon them “reflects the impact of oral evidence”. Stability submitted that the claims were abandoned because they were without merit – and should properly be dismissed within the Court’s relevant order.

Justice Smith agreed with Stability, holding that, where claims are pursued all the way to closing submissions and then abandoned, the appropriate order is ‘dismissal’ rather than ‘discontinuance’. However, Justice Smith required the order to make clear on its face the circumstances of dismissal, namely that the claims were fought to closing submissions and then abandoned, so as to avoid any suggestion that the Court had substantively adjudicated on them.

Costs and damages inquiry

On costs, the Court rejected the suggestion that an issues-based costs order would be workable. While acknowledging that Getty was the overall winner on the trade mark infringement claim, Justice Smith ordered a significant reduction to reflect Getty’s lack of success elsewhere.

Getty was ordered to pay 69.4% of Stability’s total costs on the standard basis, with interest, together with an interim payment on account of those costs in the sum of £4,395,656.89. Getty accepted liability for Stability’s costs in relation to the secondary copyright infringement claim and the dismissed primary infringement and database right claims.

The Court also ordered that there should be a damages inquiry in relation to Stability’s acts of trade mark infringement.

Concluding remarks

Legal practitioners will undoubtedly be following developments in this case with keen interest, as it raises new questions and provides further guidance on the interpretation of the CDPA amidst ongoing technological advancements. Should an appeal be adjudicated, it could have significant ramifications for the treatment of AI tools trained overseas and then imported into or distributed in the UK. The decision to record the abandoned claims as “dismissed” rather than “discontinued” may come as a surprise, illustrating that parties who withdraw claims late in proceedings risk facing adverse consequences.

Nevertheless, Justice Smith was at pains to clarify that the dismissed claims were not determined on their merits, and the precise drafting of the order expressly prevents Stability from portraying the outcome as a conclusive victory on the primary copyright and database right infringement issues, whether in the United States or elsewhere.

From a costs perspective, the Court’s approach to costs at the consequentials hearing leaves no room for doubt: Stability emerged as the clear victor overall, and Getty now faces a significant interim costs liability in addition to the unfavourable High Court judgment.

The authors would like to thank Daniel Amery, Trainee Solicitor at CMS, for his assistance in writing this article.