IL-2023-000007 - [2025] EWHC 2863 (Ch)

Logging into the account, the user is again faced with a large stability.ai logo:

In order to proceed, the user has to agree to the Terms of Service:

By this point it is clear to the user that they are interacting with a service provided by Stability.ai, although I accept Getty Images’ submission that there is no evidence (or pleading) that Stability has any goodwill or reputation in the names “DreamStudio” or “Stability ai” or in the favicon.

The terms of service include the following statement:

“The Services are provided by Stability AI Ltd… to provide creative generative tools for our users to express their creativity to produce user-generated images from text prompts (“Content”). The Services use an artificial intelligence (“AI”) tool to generate this Content. This use of AI is relatively new and still evolving. As a result, while we have taken — and continue to take — efforts to preclude your creation of extreme content, we cannot guarantee the suitability or appropriateness of the resulting images you generate. You are solely responsible for your use of the Services, including your text prompts, generation of Content, and the consequences of your Content Sharing (as defined below).

…

Your use of the Services is subject to the terms, conditions, and use restrictions in the Creative ML OpenRAIL-M license (available at https://huggingface.co/spaces/CompVis/stable-diffusion-license) (the “License”). You must review and follow the terms of the License.

…

Accordingly, you may not, or assist any other person to:

- Generate any Content or engage in Content Sharing that a reasonable person could find obscene, lewd, lascivious, offensive, pornographic, indecent,…

- Generate Content or engage in any Content Sharing that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the Content or its dissemination is unlawful”.

The License terms are in materially the same form as those referred to above. They inform the user that the outputs of the model are their own responsibility and that they may contain content which is false, misleading etc.

The user is required to purchase credits to allow them to use the model. They then select a model and input their prompt. The process of inference is started by clicking the button marked ‘Dream’. Within the button is embedded a counter indicating the number of credits that will be used.

The user is given the option of how many images to generate at once, the default value being 4. Various other parameters are displayed, such as the number of generation steps.

A delay occurs before the resulting images are provided, in which the hexagonal colour palette logo is displayed within the pane which will become a synthetic image. The (default) four synthetic images are then presented together in the web interface:

The method of accessing the Developer Platform (platform.stability.ai) combines features of the DreamStudio and GitHub access mechanisms, in that it requires technical expertise to access the API through the appropriate code (as illustrated in detail in exhibit AKK-5 to Ms Kabba-Kamara’s statement), but also requires the user to access the Stability website and create an account with Stability.

When accessing the Stability website, the user will see the same welcome message as appears for a user wishing to use DreamStudio and, having clicked “login”, he or she can then choose to create an account (which is verified by an email from platform.stability.ai) in order to continue to the Developer Platform. Upon accepting that the Developer Platform can access the account, a user is presented with a pop-up click option inviting acceptance of the Stability AI API Terms of Service. These are said to “govern your access and use of these APIs” and provide that:

“The Services are provided by Stability AI Ltd…to provide creative generative tools for users to express their creativity to produce user-generated images from text prompts (“Content”). The Services use an artificial intelligence (“AI”) tool to generate this Content. This use of AI is relatively new and still evolving. As a result, while we have taken – and continue to take – efforts to preclude your creation of extreme content, we cannot guarantee the suitability or appropriateness of the resulting images you generate. You are solely responsible for your use of the Services, including your text prompts, generation of Content, and the consequences of your Content Sharing…”

The API Terms of Service available in the evidence are expressly said to have been “last updated December 14 2022”. I can only infer that there are no material changes in the terms of service since the date of launch of Stability’s API offering on 25 November 2022.

The API Terms of Service state that the Services are provided based on models licensed under the CreativeML Open Rail ++-M License and a link is provided. As with the reference to this License on the GitHub and Hugging Face pages there is no express requirement that a user read or accept the terms of the License.