Representative claims are intended to be a method of dealing effectively with large-scale litigation, which is all the more likely to be generated by rapidly developing technologies like open-source AI. However, this judgment reminds parties that, just because a case calls out for a representative, it will not always be granted where the represented class is not properly defined and there are no clear proposals for case management. 

Ever wondered what an astronaut riding a horse on the moon would look like? Look no further - Stable Diffusion by Stability AI Limited is one of the latest open-source, generative AI tools that produce hyper-realistic, synthetic images from text and image prompts. 

But where do the underlying images come from? While all artistic creation may be a form of imitation, Getty Images claims Stability AI infringed its own copyright and the copyright it exclusively licenses from over 50,000 content creators when training and developing Stable Diffusion. 

The claim: copyright infringement  

Getty Images brought claims of copyright infringement based on three allegations:

1. the Defendant had infringed copyright by downloading the Claimants’ copyrighted works in the UK for the training and development of Stable Diffusion; 
2. the Defendant had infringed copyright by importing the pre-trained Stable Diffusion software into the UK; and
3. Stable Diffusion’s synthetic image output (accessed by users in the UK) reproduces a substantial part of the copyright works and thus itself infringes copyright (the Output Claim).     

The Output Claim was advanced in respect of the generation of images from:

1. text prompts;
2. image prompts; and
3. combined image and text prompts.

The Claimants did not initially identify any copyright works that they said had been used. After the claim had been issued, when it became clear this would present case management issues, they identified 17 copyright works on which they relied as samples for the three categories of claim. Although six of those 17 copyright works were said to have been authored by different individuals who had exclusive licence agreements with Getty Images (US) Inc – the First Claimant – none of those licensors were the Sixth Claimant (who, as explained below, was the proposed class representative).   

The representative action 

Under CPR 19.8(1)(a), where more than one person has the same interest in a claim, the claim may be begun by one claimant as representative of any other persons who share that same interest. 

While a claimant can begin a representative action as of right, the Court has a discretion whether to allow such an action to continue. Any party may apply to the Court to ask that it exercise its discretion to direct that a person may not act as representative.

In this case, the Sixth Claimant claimed to be representative of 50,000 contributors who had exclusively licensed their works to Getty Images. It was argued that the 50,000 copyright owners had a concurrent right of action with the Claimants to restrain the Defendant’s unlawful copyright infringement and to seek relief. 

The represented parties were defined as:

“those who are owners of the copyright subsisting in artistic works and film works in which they own copyright that have been licensed on an exclusive basis to the First Claimant, the copyright in which has been infringed by the Defendant. The persons that fall within such class can be identified on the basis that (i) they have entered into an exclusive license with the First Claimant … and (ii) the exclusively licensed works include works which were used to train Stable Diffusion…”. 

The Defendant applied to Court for an order directing that the Sixth Claimant could not act as representative. In broad terms, this was because the represented parties were said to be unascertainable, and the ‘same interest’ test was not met.

The “same interest” requirement 

To bring a representative claim, the representative and all members of the class must have the ‘same interest’ in the claim. In the seminal case of Lloyd v Google, the Supreme Court considered the purpose and nature of this test in detail. Key principles include:

• there must be some issue common to the representative and the represented parties such that the representative can be relied on to conduct the litigation in a way that will effectively promote and protect the interests of all represented parties. If there is a conflict of interest among the class, clearly that is not possible. However, a diverging of interests is not a barrier;
• the claims need not amount, in effect, to a joint claim. But the claims of those represented must “stand or fall on the determination of the claims of the representatives”.
• Membership of the represented class can fluctuate over time, but cannot depend on the outcome of the litigation; 
• if the “same interest” test is satisfied, the Court has a discretion whether to allow a claim to proceed as a representative claim. To decide this, the Court will consider the overriding objective of dealing with cases justly, expeditiously and at proportionate cost. This may often, but will not always, support allowing a representative claim to continue (rather than leaving members of a class to pursue individual claims). However, the Court will also consider (i) whether allowing representative proceedings would prevent the Court from effectively managing the claim, and (ii) whether there is a more appropriate procedure; and
• if the relief sought is monetary damages, that will usually limit the scope of a representative action, because damages usually depend on the position of each claimant and so need to be assessed individually. If that is the case, a representative action may still be used to decide common issues of law or fact first, with individual assessments of remaining issues to be conducted later (a “bifurcated” process). Our article on the recent judgment in the Wirral case examines the bifurcated process more closely. 

What did the Court decide?

To determine the Defendant’s application, the judge broke down the key questions to ask as follows:

• is the case within the representative rule at all? 
• if yes, should the Court nonetheless in its discretion direct that the Sixth Claimant may not act as representative? 

Was the case within the representative rule?

In summary, the judge did not think the case was within the representative rule. 

The judge considered that this question depended on two points: whether the claims of each represented party raise a common issue; and whether there is any relevant conflict of interest between them.

Those questions in turn required the Court to consider “whether the members of the class are capable of being satisfactorily identified at all.” This question was essential, as it would not be possible to assess whether the class members have ‘the same interest’ unless it were clear whether any particular claimant was in the class.

The Defendant argued that the class definition was dependent upon a disputed issue, namely whether copyright in the exclusively licensed works had been infringed by the Defendant. This rendered it impermissibly circular: it would be necessary to determine liability in order to know if the represented parties’ interests are the same. Further, if there was no liability found at trial, then the class would be empty, meaning the judgment seemingly would not bind anyone.

The Claimants sought to address this circularity by focussing on a re-worked class definition which would turn on answering two questions for which objectively ascertainable answers should be possible: (i) did the represented parties enter into an exclusive licence with the First Claimant in respect of their artistic/film works and (ii) were those works used for training Stable Diffusion? 

The judge said part (ii) of this revised definition remained problematic. She noted that there was no definite list of the works used to train Stable Diffusion, relying in large part on the Defendant’s witness evidence that “whether or not a given work was actually used to train Stable Diffusion would be wholly dependent on its own facts”. 

The Defendant persuaded the judge that this rendered a representative action unworkable because the Claimants would need to establish that one or more works of each author were in fact (i) downloaded; (ii) by the Defendant; and (iii) in the UK. This was not something that could be established by considering the works of just one allegedly representative licensor.

The Court’s discretion

Having ruled that the class definition could not work, the judge added that even if she were wrong in this, she would still have been unpersuaded that the case should be allowed to proceed as a representative action as a matter of the Court’s discretion. 

The judge considered that there was a lack of clear proposals as to how the case would be dealt with at trial, including as to whether there would be use of sample claims and what, if any, individualised assessments or bifurcation might be required. She stated that it was not possible to assess whether allowing the representative action to proceed would promote access to justice without a better understanding of what was being proposed.

Fail to prepare, prepare to fail

The circularity of the original proposed definition of the represented class seems clear, so it is unsurprising that the Court was unwilling to allow the claim to go ahead in that form. However, this case is also an illustration of how challenging it can be to find a proportionate means of resolving cases of mass harm caused by digital technologies. In the circumstances here, it would be impractical to have the circa 50,000 licensors as individual Claimants in the litigation. But the Court was not prepared to allow the claims to proceed on a representative basis instead, and appears to have had serious concerns about whether both sides had properly considered the implications of this. 

The judgment hints at potential alternatives to a representative claim (as well as an alternate and better defined class definition) but ultimately rejected those alternatives because they had been raised late and hadn’t been properly set out.