Lindsay Lane KC, Jessie Bowhill and Joshua Marshall appeared for the Claimants, five of whom are members of a group of companies that offer global visual content creation and a marketplace (“Getty Images”) and Henry Edwards appeared for the Defendant, (“Stability AI”) in an application made by the Defendant for an Order that, pursuant to CPR r.19.8(2), the Sixth Claimant (“Barwick”) may not act as a representative party in these proceedings..
Getty Images allege that Stability AI has scraped images from the Getty Images websites, without their consent, and used those images unlawfully as input to train and develop an AI model, Stable Diffusion. Further, Getty Images allege that, in certain instances, the output of Stable Diffusion is itself infringing, as it reproduces a substantial part of the various copyright works and/or bears the Getty Images trade marks. Getty Images’ pleaded case was that Barwick “represents and has the same interest in this claim as the parties who are owners of artistic works and film works that have been licensed on an exclusive basis to the First Claimant” (“the Represented Parties”).
Mrs Justice Joanna Smith held that Barwick may not act as a representative for the class of individuals identified by Getty Images. She held that that the members of the class of Represented Parties were not capable of being satisfactorily identified and was dependent on the outcome of the proceedings. Further, the Court could not exercise its discretion to allow the claim to proceed as pleaded as it would not be consistent with the overriding objective to permit a representative claim to proceed in the absence of clear proposals as to how it will be dealt with at trial, vis whether samples will be used and extrapolated across the class and whether, and if so, how, any individualised assessments that may be required are to be bifurcated.
However, Mrs Justice Joanna Smith observed that an appropriate order under CPR r.19.3 could be obtained upon the service of appropriate evidence. At a later CMC, Getty Images applied for and obtained an order under CPR r.19.3 that all persons jointly entitled to the remedy claimed by Getty Images, namely the relevant copyright proprietors who licence their works to Getty Images, need not be joined as parties to these proceedings.