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

In support of its submissions in closing that Getty Images are unable to prove their case on incidence of watermarks* in respect of v1.x, Stability makes three points:

In light of the available evidence, I consider that, on balance, at least one user of v1.2, 1.3 and 1.4 accessed via the Developer Platform/API and (in the case of v1.4) also via DreamStudio in the UK will have come across a Getty Images watermark* and an iStock watermark* generated on synthetic images (a fortiori I consider that at least one user accessing via CompVis Hugging Face and CompVis GitHub will also have done so, should it be relevant to say so). While I cannot begin to identify how many times this might have taken place (and certainly do not have the evidence which would enable me to do so), I consider the weight of the evidence which I have set out in detail above to support such a finding.

I also consider it significant that Stability conceded in opening that the incidence of watermarks* in respect of v1.x is “non-trivial” and that it has occurred “to a non-trivial extent both in response to prompts designed by Getty to generate such watermarks and sporadically in relation to other prompts”. Stability did not seek to withdraw its concession as to the “non-trivial” incidence of watermarks in v1.x in closing, but expressly maintained its position. While users of DreamStudio (for v1.4) and the Developer Platform (for v1.x) in the UK will only account for a small fraction of the total images generated across the world using Stable Diffusion, that small fraction is still likely to be a very considerable number of images and on balance I am satisfied on the available evidence (including the concession) that watermarks* will have been generated by such users. I note other relevant concessions from Stability during the trial as follows: “there is no doubt that there are plenty of examples of watermarks ‘in the wild’ amongst the billion or more images produced by versions 1.1-1.4 of Stable Diffusion”; that “we do accept there is some evidence of watermarks in the wild for v1 to v1.4”; and “[Ms Lane] says Stability was aware there was an issue with watermarks and we agree. It was something which happened”.

In respect of the generation of iStock watermarks* by v1.x (and in addition to the evidence of the Experts), I consider the following evidence to be particularly persuasive (i) the “real life” “vector art” prompt at page 3 of Annex 1; (ii) the “vector art” prompts in Annex 8H illustrating the generation of watermarks* in the UK for versions 1.2, 1.3 and 1.4; (iii) observations by users in the Reddit Chat of 27 August 2022; (iv) the 15 September 2022 Hugging Face email to Mr Mostaque and (v) the October 2022 SalesForce Message.

In respect of the generation of the Getty Images watermarks* by v1.x (and in addition to the evidence of the Experts), I rely upon (i) the “real life” Donald Trump Image generated using the words “news photo” together with an article in The Verge by James Vincent of 15 September 2022 which used this real life image observing that “[t]he presence of copyrighted imagery in Stable Diffusion’s training data is obvious from the program’s tendency to reproduce the ‘Getty Images’ watermark in certain pictures”; (ii) the “news photo” prompts in Annex 8H illustrating the generation of watermarks* in the UK for versions 1.2, 1.3 and 1.4 and (iii) the DreamStudio Email.

I also consider that on balance at least one user of each of Stability’s v2.x Models accessed via DreamStudio and/or the Developer Platform and/or Hugging Face and GitHub in the UK will have come across a Getty Images watermark* generated on a synthetic image. Again, I consider the weight of the evidence which I have set out in detail above to support such a finding. Furthermore, I note Stability’s concession in opening (inevitable given the content of Annex 8I) that “it does appear there are some instances ‘in the wild’” and that “it is possible for users of v2.1 to generate images with watermarks* without contrivance” although Stability submits that the incidence of this is “insignificant” and “does not justify the court’s interference”. Given that there is no de minimis case pleaded by Stability, this concession is again important and amply justifies my finding that Getty Images have satisfied their burden in relation to v2.x. Although this concession was not repeated in Stability’s closing submissions, I did not understand it to be withdrawn and, in any event, in my judgment it correctly reflects the available evidence.

For v2.0 and 2.1 (in addition to the evidence of the Experts), I rely upon the following evidence: (i) the examples of real world generation of watermarks* in Annex 8I; (ii) the Japanese Temple Garden post; (iii) the observations made in respect of the Reddit Musician Post; (iv) the DreamStudio Email; (v) the Annex 8H “news photo” prompts illustrating the generation of watermarks* in the UK for versions 2.0 and 2.1 (combined with the Donald Trump Image which shows that “news photo” is a prompt that users use in real life – albeit on this occasion in relation to v1.5).

I am not swayed by Stability’s various experiments to take a different view on v2.x. The Diffusion DB experiment used only 1000 prompts and the AJG-10 experiment used only 525. While these experiments produced no watermarked images (with the exception of one image identified by Professor Farid in his report which shows two very distorted watermarks* in its bottom right-hand corner), they are not evidence that v2.x does not in fact produce watermarked* images in the real world for all the reasons I have given above.

There is no evidence that iStock watermarks* have ever been generated in real life using v2.0 or 2.1 and accordingly I find that the threshold issue is not satisfied in this regard. I did not understand Stability’s concession of “insignificant” incidence to apply in relation to iStock watermarks*.