Getty Images (US), Inc. & Ors v Stability AI Ltd – Court of Appeal Affirms that Specific Particulars Narrow Broad Pleadings and Bar Late Introduction of Un-pleaded Allegations
Introduction
Getty Images (US), Inc. and related companies (“Getty”) brought a multi-faceted intellectual-property action against Stability AI Ltd (“Stability”), developer of the text-to-image generative AI model “Stable Diffusion.” Central to the litigation is the allegation that Stable Diffusion, trained on over 12 million Getty images (many of which bear Getty watermarks), produces synthetic images that reproduce or imitate Getty’s registered trade marks. Getty relies on section 10(3) of the Trade Marks Act 1994, alleging that these images cause detriment to the repute of its marks (i.e. “tarnishment”).
On the first day of trial, Getty attempted—through its skeleton argument—to enlarge the tarnishment case by relying on the presence of child sexual abuse material (“CSAM”) in the training data and the capacity of Stable Diffusion to create CSAM-like outputs. Mrs Justice Joanna Smith ruled ex tempore that CSAM was not included in Getty’s pleaded case and barred Getty from pursuing that line at trial. Getty appealed.
The Court of Appeal (Arnold LJ and Males LJ) dismissed the appeal, holding that—
- although the term “pornography” in the original Particulars of Claim could encompass CSAM,
- the parties expressly agreed during case management that Getty would particularise its general allegation by pleading specific image examples,
- those examples related only to “Not Safe For Work” (NSFW) celebrity nudes, not CSAM,
- therefore the scope of the claim was, objectively, limited to those examples and comparable imagery, and
- serious allegations such as CSAM cannot be smuggled in via a skeleton argument on the eve of trial.
Summary of the Judgment
1. Getty’s appeal raised two issues:
- Whether the word “pornography” in paragraph 57.9 of the Re-Re-Re-Amended Particulars of Claim (“POC”) already embraced CSAM;
- Whether the judge misapplied pleading rules governing serious allegations.
2. Arnold LJ accepted that, in isolation, “pornography” is linguistically broad enough to include CSAM. However, the court looked beyond word-level semantics to the procedural history:
- At the 30 April 2025 Case Management Conference (CMC) Getty agreed to plead concrete examples of the imagery said to tarnish its marks.
- Getty’s 6 May 2025 amendment duly identified only three examples—none of which were CSAM.
- Getty’s subsequent Reply confirmed reliance on those NSFW celebrity images.
3. Objectively construed, the statements of case (POC + amendment + Reply) therefore excluded CSAM. The appeal was dismissed: Mrs Justice Smith had been right (even if for different reasons) to bar Getty’s late attempt to raise CSAM.
4. Males LJ agreed, emphasising that:
- “Pornography” is extremely wide and inherently demands particularisation.
- The purpose of particulars is to clarify and narrow broad allegations; here, the pleaded examples “are very far away” from CSAM.
- No trial directions for handling CSAM (special access, viewing protocols, etc.) had ever been sought—underscoring that CSAM was never part of the live pleadings.
Analysis
1. Precedents Cited
a) L’Oréal SA v Bellure NV (Case C-487/07) [2009] ECR I-5185.
The Court of Appeal quotes paragraph 40, the leading EU definition of “detriment to the repute” (tarnishment). The decision anchors tarnishment within section 10(3) jurisprudence and stresses that reputation can be harmed where the infringer’s goods/services (or, here, AI outputs) possess characteristics that negatively affect the mark’s “power of attraction.” Getty relies on that framework to argue that association with pornography—or at a higher level, CSAM—diminishes the attractiveness of its marks.
b) Pleading principles (no single citation).
While no single authority is highlighted, Arnold LJ implicitly invokes the line of cases on pleading fraud and serious wrongdoing (e.g.,
c) International Instruments on CSAM.
Arnold LJ cites Article 34(c) of the UN Convention on the Rights of the Child; ILO Convention 182; and EU Directive 2011/93. These confirm that child pornography is legally recognised as a sub-category of sexual exploitation, reinforcing the point that CSAM is a subset of pornography but carries distinct criminality. The references also underline the heightened seriousness of CSAM, justifying stricter pleading requirements.
2. Legal Reasoning
-
Textual Meaning vs. Procedural Context.
The court accepted Getty’s linguistic argument—“pornography” can include CSAM—but held that litigation is not governed by dictionaries alone. What matters is what the parties objectively agreed the pleading meant after case-management discussions. The amendment identifying only NSFW celebrity nudes restricted the ambit of “pornography.” Thus, once particulars are supplied by way of example, they define (and limit) the controversy. -
Pleading Serious Allegations.
Even if CSAM were within “pornography,” alleging that an AI system facilitates or outputs illegal material is a “serious allegation.” The defendant must know the case it faces and have an opportunity to prepare, especially where handling CSAM would require special protocols. Skeleton arguments serve to marshal existing pleaded facts, not to introduce new claims. -
Fair Trial and Case Management.
The CMC transcript showed the judge insisting on transparency: “matters on which a party wishes to rely are identified in the pleadings so the other side knows what case it has to meet.” Getty conceded the point and amended. The Court of Appeal treated that as a procedural contract—Getty could not later renege without formal amendment and permission. -
Objective Construction of Pleadings.
Consistent with authorities such as Autosuccess (UK) v Pearson, pleadings are interpreted objectively: what would a reasonable reader conclude the case to be? A reader would not infer a CSAM allegation when the only pleaded examples relate to adult celebrity nudes.
3. Impact
The decision is significant on several fronts:
- Generative AI Litigation: As AI models become evidence in IP suits, claimants may be tempted to expand allegations (e.g., extremist content, CSAM) for rhetorical impact. The Court signals that AI-related novelty does not relax civil-procedure fundamentals.
- Pleading Strategy: Parties must decide early whether to run “shock” allegations. If they settle for illustrative examples that exclude such material, they cannot later pivot without amendment.
- Trade Mark Tarnishment: The case illustrates the evidential threshold for s.10(3) claims: concrete outputs must be pleaded and proved. Hypothetical or unparticularised risks (e.g., “the AI could generate CSAM”) are unlikely to suffice.
- CSAM in Civil Courts: The judgment underscores the procedural safeguards (handling directions, disclosure protocols, judicial warnings) necessary where CSAM forms part of evidence. Claimants must plead CSAM expressly so the court can impose protective measures.
- Precedential Value: While fact-specific, the case will likely be cited for the proposition that particularisation by example imposes real, substantive bounds on otherwise general pleadings.
Complex Concepts Simplified
- CSAM (Child Sexual Abuse Material)
- Modern term replacing “child pornography,” referring to any depiction of a child engaged in explicit sexual activity or any depiction of a child’s sexual parts for primarily sexual purposes. Possession is a serious criminal offence.
- Stable Diffusion
- A publicly-released text-to-image AI model that generates synthetic pictures from textual prompts. It was trained on billions of web-scraped images via the LAION dataset.
- Skeleton Argument
- A concise written submission exchanged shortly before trial summarising each side’s legal and factual arguments. It should not introduce new allegations or evidence.
- Particulars of Claim (POC)
- The detailed statement of facts on which a claimant relies, setting out the causes of action. It defines the boundaries of the dispute.
- Particularisation
- The process of supplying concrete detail (names, dates, examples) to support general allegations in a pleading. Required especially for serious or complex claims.
- Section 10(3) Trade Marks Act 1994
- Gives owners of marks with a reputation a cause of action against use of an identical or similar sign that takes unfair advantage of, or is detrimental to, the mark’s distinctive character or repute (“tarnishment”).
- Case Management Conference (CMC)
- A procedural hearing where the court sets the timetable and gives directions to ensure the case proceeds efficiently.
- CPR Part 18
- Part of the Civil Procedure Rules allowing a party to request further information or clarification of an opponent’s pleading.
Conclusion
Getty Images v Stability AI is less about AI ethics and more about civil-procedure orthodoxy. The Court of Appeal confirms that:
- Even elastic terms (“pornography”) acquire defined contours once parties agree to plead specific examples;
- Serious or criminal allegations—CSAM prominently—must be spelled out in the pleadings, not unveiled in a skeleton argument;
- Case-management directions, and the parties’ procedural concessions, are binding in substance, not merely form;
- The fairness of trial preparation outweighs tactical surprise, especially in fast-moving technology disputes.
Going forward, litigants in AI-driven IP litigation must craft pleadings with precision, anticipate evidential burdens, and seek timely amendments if their theories evolve. Courts, for their part, will continue to insist on disciplined pleading practice, ensuring that technological novelty does not erode fundamental procedural safeguards.
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