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

Contracts are interpreted in accordance with the parties’ intent (see Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). This is derived from the language employed in the contract. In seeking to ascertain the parties’ intent, the aim is a practical interpretation of the expressions of the parties to the end that there be a realisation of their reasonable expectations (Harpercollins Publ., LLC v. Arnell, 23 Misc 3d 1117(A) (Sup Ct 2009)). With written agreements, the best evidence of the parties’ intent is what is said in the written agreement (see Slamow v. Del Col, 79 N.Y.2d 1016, 1018). Thus, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms (W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162 (1990)).

Written agreements are interpreted as a whole and each term is interpreted in the light of the rest of the agreement, with all writings that are part of the same transaction interpreted together. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought (see S & S Media, Inc. v. Vango Media, Inc., 84 A.D.2d 356, 359 and Restatement (Second) of Contracts §202(1) and (2)). Unless a different intention is manifested, where language has a generally prevailing meaning, it is interpreted in accordance with that meaning and where technical terms or words of art are used, these are given their technical meaning (see Restatement (Second) of Contracts §202(3)(a) and (b)).

In construing a contract, the Court “should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” (see Petracca v. Petracca, 302 AD2d 576, 576-77 (2d Dep’t 2003)). The contract must be read as a whole to determine the parties' purpose and intent (Krape v. PDK Labs, Inc., 34 A.D.3d 751,753).

Where several constructions of a contract are possible, the court can look to the surrounding facts and circumstances to determine the intent of the parties (see 25 Bay Terrace Associates, L.P. v. Public Service Mutual Insurance Company, 194 A.D.3d 668, 670). The background for this purpose includes “the entire situation, as it appeared to the parties” at the time of entering the contract (Restatement (Second) of Contract §202 at (b)). Where a contract is ambiguous, extrinsic evidence may be considered to determine the parties’ intent (Yarom v. Poliform S.P.A., 153 AD3d 760, 761 (2d Dep’t 2017)).

A contract should not be interpreted in such a way as to leave one of its provisions substantially without force or effect but, instead, to “give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” (Petracca v. Petracca, 302 AD2d 576, 576-77 (2d Dep’t 2003)). The court must avoid an interpretation that would leave contractual clauses meaningless and/or would render contractual language mere surplusage (Two Guys from Harrison–N.Y., Inc. v. S.F.R. Realty Associates, 63 N.Y.2d 396, 403 (1984); see also Westview Assoc. v. Guaranty Natl. Ins. Co., 95 N.Y.2d 334, 339 (2000)).

A relevant aspect of the context to an exclusive licence agreement over copyright is the federal Copyright Act which governs issues relating to the ownership and licensing of copyright and to the issue of standing to sue and which has been interpreted in decisions of the federal District Courts, the US Circuit Courts of Appeal and the US Supreme Court.

Normal principles of contractual interpretation apply to agreements to transfer copyright (Orange Cnty. Choppers, Inc. v. Olaes Enterprises, Inc., 497 F. Supp. 2d 541, 551 (S.D.N.Y. 2007)).

Under §101 of the Copyright Act, a “transfer of copyright ownership” is defined to include “an exclusive licence…of a copyright or of any of the exclusive rights comprised in a copyright whether or not it is limited in time or place of effect, but not including a nonexclusive licence”. Under §501(b) of the Copyright Act, “the legal or beneficial owner of an exclusive right under a copyright is entitled…to institute an action for any infringement of that particular right”. That includes an exclusive licensee within the meaning of §101 of the Copyright Act (Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1004 (9th Cir. 2015) (“Minden Pictures”)).

A licence agreement is exclusive where it permits a licensee to use the protected material for a specific use and further promises that the same permission will not be given to others (see I.A.E., Inc. v. Shaver, 74 F.3d 768, 775). The exclusive rights subject to an exclusive licence may be shared between one or more parties, including between the licensee and the owner and between more than one licensee, without the licence falling outside of §101 of the Copyright Act (see Minden Pictures at 1004).

The latter proposition of New York law is of course very different from the position under the CDPA referred to above, where an exclusive licence comprising the same rights cannot be granted to multiple entities, or, put another way, a licence will not be exclusive if it is not exclusive to one party. In brief summary, it is Stability’s contention (to which I shall return) that this point is of importance when it comes to construing the licence agreements governed by New York law which it says appear to have been drafted with this more permissive regime in mind. Stability submits that the use of the word “exclusive” in those licences is use of a legal term of art, or a technical term, and that it is likely to be a reference to the New York law concept of an exclusive licence (which may include multiple parties) rather than an allusion to any English law concept of an exclusive licence (which can involve only one party).

In broad terms, Stability challenges the exclusivity of the relevant licence agreements on three main grounds. These have been referred to by the parties as (i) “the Multiple Entity Point”; (ii) “the Carve Out Point”; and (iii) “the Signature Point”. An additional point identified at trial by the parties as “the Date Point” had fallen away by the time of closing submissions. I shall address these points in turn.

This point concerns only the Contributor Agreements (thereby bringing into focus the principles of New York law to which I have referred). Although it arises slightly differently in relation to variations of these agreements owing to variances in their terms, Stability’s fundamental point is that the relevant licences have been granted to more than one entity (as permitted by New York law) such that, as a consequence, they cannot be exclusive licences for the purposes of English law. Getty Images would have standing to sue in the United States, but they do not have standing to do so here.

I start by focusing (as did Getty Images in oral submissions) on sample licence #2. This agreement dates from February 2007. Its signature page identified the Contracting Parties, the Contributor and “Getty Images (US) Inc., a New York corporation with offices located at 75 Varick Street, New York, NY 10013, U.S.A. (“Getty Images” or “we”)”.

A single recital then records that:

“Getty Images (US), Inc. (“Getty Images” or “we”) invites the Contributor identified on the signature page to the agreement…to submit photographic images, illustration, audio, footage, fonts and/or animation that may be used in Getty Images’ products and services and for licensing and distribution by Getty Images to third parties. The following terms and conditions will apply to all material submitted and accepted for licensing by Getty Images under this Agreement”.

The licence provision is at clause 2.1 and is in the following terms:

“2.1

License Grant to Getty Images. Subject to Section 2.3, you grant Getty Images a worldwide, exclusive right to distribute, market, sublicense, rent, use, copy, reproduce, publish, transmit, broadcast, display, communicate and make Accepted Images available to the public...Getty Images may sublicense or authorize any of its Distributors, Clients and their customers to exercise the rights described in this paragraph…”.

Section 1 to the agreement is a Definitions section. “Getty Images” is defined as meaning:

“Getty Images (US), Inc and each of the entities, controlling, controlled by or under common control with Getty Images”.

In the same section, “Distributor” is defined as meaning “any company, firm other organization, entity or person authorized by Getty Images to license the Accepted Images to Clients”. “Accepted Images” are images “accepted for distribution under the Agreement”.

Against that background, Stability submits that, on its true construction under New York law, agreement #2 plainly grants licence rights to multiple parties, namely multiple companies in the Getty Images Group. Getty Images submit, on the other hand, that there are two definitions of Getty Images in this agreement – the definition appearing in the recital and the definition appearing in section 1. They say that the definition in the recital is clear and unambiguous whereas the definition in section 1 is unclear, confused and circular because “the characteristic that links each of the entities identified in the list (i.e. those controlling, controlled by, or under common control) is their relationship with “Getty Images”. This, it is submitted, simply raises the question, what is “Getty Images”? It would make no commercial sense to favour the definition in section 1 over the very first sentence of the agreement. Further, says Getty Images, if the definition in section 1 were to be adopted, then the definition in the first sentence of the agreement “is entirely redundant” – an outcome which would be inconsistent with the approach taken to construction under New York Law.

During oral submissions, Ms Bowhill drew my attention to three specific points which she said supported the interpretation for which Getty Images contends:

Having regard to the principles of New York law to which I have been referred, I prefer the construction placed on #2 by Stability for the following main reasons:

For all the reasons set out above, I find that Sample Agreement #2 is not an exclusive licence under section 92 CDPA.

These agreements cover the period between July 2007 and October 2011. The key material difference between this group of agreements and Sample Agreement #2 is that Getty Images is defined in these agreements in the following terms (key differences appear in bold):

Getty Images accept that these definitions all make it clear that, in certain contexts throughout the relevant Contributor Agreements, the term Getty Images means Getty Images (US), Inc and its affiliated companies. However, they contend that the obvious (and stated) intention is that there will be contexts in which that term means only Getty Images (US), Inc. Thus the term may have a different meaning depending on which clause is in issue and the context of that clause.

I observe that Sample Licence #3 is the only licence in this group that also has wording in its recital which matches the wording in the recital to Sample Licence #2. However, given that the definition of “Getty Images” in Sample Licence #3 could not possibly be said to be ambiguous, confusing or circular, I cannot see that this affects the analysis to be conducted in relation to Sample Licence #3. I did not understand Getty Images to suggest otherwise.

The parties are agreed that the wording in the grant of rights clause in these Sample Licences is broadly consistent across all relevant agreements and I did not understand them to submit that the slightly different wording of other terms and conditions in each agreement affected the overall analysis. Broadly, then, the question for the court is how the words “Getty Images” used in the grant of rights clause are to be construed.

I take the grant of rights clause in the “Standard Terms and Conditions” of Sample Licence #8, as Getty Images did in their submissions, by way of example (Footnote: ¹²). As I understood the parties submissions, the points raised in relation to Sample Licence #8 apply equally to agreements #3, 10, 11, 13, 30 and 32. The grant of rights clause in #8 reads as follows:

“1.1

License Grant to Getty Images: You grant Getty Images a worldwide, exclusive right to market and sublicense Reproduction Rights in Accepted Content. Except for Still Images that you submit for licensing through Rights-Managed Editorial or the Reportage Collection (“Reportage”), you also grant Getty Images the additional right to modify, adapt or create Derivative Works of all other Content, in any medium and for any purpose. Getty Images may sublicense or authorize any Distributors, Clients and their customers to exercise the rights described in this Section 1. Getty Images and Distributors will determine the terms and conditions of all licenses of Accepted Content granted by them, but will not use or license Accepted Content for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use brought to our attention. Getty Images and Distributors may determine how Accepted Content may be marketed and may stop marketing or licensing it at any time. If Getty Images notifies you that it has permanently stopped marketing and licensing Accepted Content, the Agreement will be deemed to be terminated only with regards to that Accepted Content”.

As Getty Images point out, Sample Licence #8 makes clear in its “Commercial Terms” under the heading “Exclusivity” (“the Exclusivity Provision”) that:

“[a]ll Content submitted to Getty Images is on a Content exclusive basis. Once Content has been submitted to Getty Images, such Content and any Similars may not be licensed to any third party unless Getty Images has notified you that it has been rejected. In addition, you must submit exclusively to Getty Images any Content or Similars that you have created (a) on assignment for or as representative of Getty Images; (b) acting on information, direction or access provided through Getty Images; or (c) where Getty Images is funding any of the costs incurred in connection with the creating that content”.

A “Right to Control Claims” clause at 1.4 of the standard terms and conditions provides that:

“You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend Claims related to Accepted Content… You agree to provide reasonable cooperation to Getty Images and Distributors…”

In the definitions section at section 5 of Sample Licence #8, “Distributor” is defined as “any company, person, or other entity authorized by Getty Images, directly or indirectly, to license Accepted Content to Clients” (emphasis added). “Client” means “any customer who licenses Accepted Content from Getty Images or a Distributor”.

Once again, Stability submits that, having regard to the context, the reference to Getty Images in the grant of rights clause is a reference to multiple parties with the effect that it is not an exclusive licence under section 92 CDPA (“the Wider Construction”).

Getty Images contend, on the other hand, that the grant of rights clause at 1.1 is intended to grant rights only to Getty Images (US), Inc (“the Narrow Construction”). However, they accept that “several constructions are possible” and accordingly submit that the court is permitted to look at the surrounding facts and circumstances to determine the intent of the parties. Specifically, Getty Images submit that relevant surrounding facts and circumstances include that:

Thus Getty Images say that a practical interpretation of clause 1.1 points to the term “Getty Images” meaning only Getty Images (US), Inc. They submit that it makes commercial sense that the First Claimant is the only entity to benefit from the grant of the exclusive licence because it is the entity that (i) enters into the agreement with the Contributor; (ii) can enforce the agreement if it needs to; and (iii) sub-licenses the Copyright Work thereafter. If the exclusive licence being granted extended to all of the First Claimant’s affiliated companies, it would be pointless for the First Claimant to then grant sub-licences to other entities in the Group, such as the Second Claimant. Thus, say Getty Images, the fact that the First Claimant grants such sub-licences supports the proposition that the parties to this Contributor Agreement intended to grant an exclusive licence to a single entity only, i.e. the First Claimant.

Getty Images also rely upon the submission (as recorded in relation to Sample Licence #2 above) that the definition of “Distributors” covers other Getty Images entities and so renders it unnecessary for an exclusive licence to be granted more widely. They contend that the Narrow Construction is consistent with Petracca v Petracca in that it gives a fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Specifically, it is (say Getty Images) the only construction which (i) gives exclusivity to the licence in the UK; and (ii) allows the First Claimant to control claims in the UK “which cannot occur if Getty Images in clause 1 is construed to cover the First Claimant and its affiliated companies”.

Getty Images point to other clauses in Sample Agreement #8 which they say either support (in context):

Once again, I prefer the Wider Construction of the grant of rights clause in Sample Licence #8 for the following reasons:

For all the reasons set out above, I find that Sample Licences #3, 10, 11, 13, 30 and 32 are not exclusive licences for the purposes of section 92 CDPA.

I should, however, add a postscript. It appeared to me, when considering the construction of this group of agreements, that an argument that could have been advanced by Getty Images was to the effect that the wording in the various definition sections made clear that the default position when considering the meaning of the words “Getty Images” was always that those words mean Getty Images (US), Inc. unless the context leads to the inevitable inference that those words mean the Group companies (i.e. “and, where the context implies/infers”). It is not clear to me that this point would necessarily have made any difference (particularly in light of my decision above in relation to the interpretation of the Exclusivity Provision), but, in any event, as it was not argued by either side, I do not consider it appropriate to address it further.

Finally, I must turn to consider Sample Licences #17 and 19 which cover the period June 2014 to December 2018. Sample Licence #19 is the latest agreement in issue in these proceedings.

All references to “Getty Images” in Sample Licences #17 and #19 are said (at the outset of those agreements) to mean:

“Getty Images (US), Inc and, where the context implies, each of the entities, controlling, controlled or under common control with Getty Images (US), Inc (each an “Affiliate”). The rights granted to Getty Images under this Agreement may be sublicensed to one or more Affiliates in Getty Images’ discretion”

Does this alter the analysis to which I have referred above? In particular, perhaps, what is the impact of this provision when read in conjunction with an Exclusivity Provision (in much the same terms as the Exclusivity Provision referred to above) in which Getty Images accepts that at least one of the references to Getty Images must be to the wider group of companies, but says that other references to Getty Images in the same provision are to be interpreted narrowly?

I have already held that Getty Images’ approach to the Exclusivity Provision is confusing and impractical for the purposes of the argument on interpretation in relation to the earlier Sample Licences, but how should the court approach the Exclusivity Provision in these later Sample Licences where the definition of Getty Images is in very different terms?

For reasons I have explained, I have no extraneous factual background or surrounding circumstances on which I can rely to provide me with evidence of the parties’ shared intent and reasonable expectations. However, Getty Images submits that there can be no real doubt that if the grant of rights clause in 1.1 of the standard terms and conditions of these two agreements was intended to grant rights to Getty Images Group there would have been no need to make provision for those rights to be “sublicensed to one or more Affiliates in Getty Images’ discretion”. Those words would be meaningless.

In response, Stability submits that the additional wording in the definition gives Getty Images “the option” to sub-licence to Affiliates and that “if it does not exercise this option, Getty needs the licence to cover the whole Group because all its companies are involved in exploiting this copyright”. It relies on the same arguments in relation to the Exclusivity Provision and it contends that Getty Images’ consistent practice of taking a licence which grants rights to the whole Group stretches right back to its early Contributor Agreements and that it is to be inferred that Getty Images do not intend to agree terms in these later agreements which change that practice.

On balance, however, and having regard to the need to avoid an interpretation that would render contractual language “mere surplusage”, it seems to me that the definition of Getty Images in the grant of rights clause in these agreements (and in parts of the Exclusivity Provision dealing with content being submitted to Getty Images), must be given the Narrow Construction. This is notwithstanding that this involves interpreting different references to Getty Images in the Exclusivity Provision in different ways, without any appropriate clarificatory language. While this is to my mind undesirable and while clear words would ordinarily be required to render this necessary, I am left with the conflicting indications provided by the Exclusivity Provision and the definition of Getty Images and I consider that the words now included in the definition of “Getty Images” must carry the day if the principles of New York law to which I have been referred are to be applied. Stability’s explanation that the additional words provide Getty Images with “an option” do not, to my mind, address the fundamental issue that there is no need for that option if the licence is to the Group as a whole. Stability provided me with no other theory as to how the additional wording in the definition could be given a meaning if it was right in its interpretation.

The fact that the definition of “Distributor” in these agreements makes reference to “third party distributor” – thereby to my mind clearly making the distinction between a Distributor on the one hand and an Affiliate on the other – does not appear to me to alter this conclusion. Equally, in the face of the additional words used by the parties when defining Getty Images, I do not consider the fact that New York law permits exclusive licences to be made with more than one licensee to be persuasive.

I reject Stability’s submission that the evidence of the earlier Sample Licences indicates Getty Images’ consistent practice and that these later agreements should be interpreted in that same light. Where wording has been changed, it is difficult to see how any presumption of “consistent practice” could properly be applied. In any event, I was shown no principle of New York law to this effect. I note that each agreement is subject to an entire agreement clause making clear that any previous agreements related to the distribution of Accepted Content have been superseded and cancelled and that the agreement “constitutes the entire agreement among the Parties relating to its subject matter…”.

Finally, Stability submitted that there is no evidence of the First Claimant granting sub-licences to Getty Images affiliates despite a large number of Getty companies being involved in the marketing and sale of images and despite the fact that Getty Images have disclosed large numbers of other agreements between different Getty group companies as part of their case on title. Stability suggests that the inference to be drawn is that “Getty rely principally on the head licence rights granted by these agreements to exploit these images as these rights extend [beyond the First Claimant] to the rest of the Getty group”. I reject this submission. I have seen nothing in the agreed principles of New York law which would permit me to take this course and nor did Stability draw my attention to any principles on which it relied in making this submission.

I do not consider any of the other arguments canvassed above in respect of the other Sample Licences to alter this outcome. The references to Getty Images in the various clauses of these agreements must be construed having regard to the context of the definition to which I have referred.

Accordingly I find that on their true construction Sample Licences #17 and #19 are exclusive licences pursuant to section 92 CDPA.

As developed in closing, I understood this point to concern only the iStock ASAs, whose construction, as I have said, is to be determined having regard to the canons of construction in English law.

Each of the iStock ASAs in Sample Licences #34-38 contain a provision in the following terms at clause 9(b):

“You represent and warrant that you shall not: (i) license your own Exclusive Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another iStockphoto member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph iStockphoto may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.” (emphasis added).

Stability submits that what it describes in its Defence as a “vaguely defined carve-out” appears to permit each copyright owner to license his works and exploit the Content in parallel with the First Claimant (and/or as the case may be, its predecessor licensees). It says that this is therefore not a license in the First Claimant’s favour “to the exclusion of all other persons, including the person granting the licence”. The copyright owner is permitted to license his content as long as this is only done “occasionally” and for “legitimate creative purposes”. Stability says these are qualitative limitations that do not limit the copyright owner’s rights in this respect “to any specific defined area”.

Getty Images contend, on the other hand, that this is not a carve-out of rights at all. They point to the licensing provisions in these agreements which they say expressly reserve exclusive rights to Getty Images and they submit that the parties cannot have intended that these be overridden by clause 9(b), which (they say) is no more than a representation and warranty from the licensor which simply contains “a caveat” in the form of the emboldened words identified above. Thus, say Getty Images, clause 9(b) does not permit the licensor to do something, it simply acknowledges that, if the licensor does a specific purpose-limited act, it will not be in breach of its representation or warranty. In closing oral submissions, Ms Bowhill also submitted that the provisions of clause 9(b) are plainly a reference back to clause 2(b), which is where the rights which are retained by the licensor are set out. She emphasised that on no sensible construction could the words of this caveat include a carve out in respect of the licensing of images for training an AI model.

Taking Sample Licence #36 by way of example (as Getty Images did in oral submissions), clause 1(c) provides that:

“The supplier wishes to appoint iStockphoto as its exclusive agent to license, sublicense and distribute Exclusive Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement”.

Clause 2(a) defines the Exclusive Content as one or more of “(i) Photo Content, (ii) Illustration Content; (iii) Flash Content or (iv) Motion Content”. Clause 2(b), provides that:

“Notwithstanding the definition of Exclusive Content and the exclusive license granted in this Agreement, nothing shall restrict the Supplier from (i) establishing or maintaining a personal portfolio web-site on which Exclusive Content is posted for the purposes of art display but not the sale or licensing or giving away of rights to the digital Content; or (ii) using Exclusive Content in connection with the sale by Supplier of prints, t-shirts and other merchandise where the sale or licensing or giving away of rights to the digital images or other Content beyond such merchandising use is not involved.” (emphasis added)

Pausing there, it is clear that clause 2(b) expressly prohibits a licensor from selling, licensing or giving away rights to the digital Content save for the purposes of selling merchandise. As Getty Images submits, all rights beyond those reserved to the Supplier in clause 2(b) are expressly granted to Getty Images and are exclusive. This is clear from the wording of clauses 1(c) and 2(b). I note in this context that this agreement is identified as an “Artist’s Supply Agreement (Exclusive)” and that the recital records that “[t]his Agreement governs the terms by which photographers, videographers or other artists provide stock photographic, video and other media content to members of the iStockphoto.com community, on an exclusive basis through web site located at www.istockphoto.com (the “iStock Site”), and to other prospective purchasers through other distribution venues as provided for in this Agreement. [For the non-exclusive Artist’s Supply Agreement, go to this link]” (original emphasis).

It is very difficult to see how a clause dealing with representations and warranties can have been intended to undermine this purpose. Furthermore, if it had been intended to retain a general right on the part of the licensor to license his works in exactly the same exclusive domain as the licensee (notwithstanding the provisions of clauses 1(c) and 2(b)), then it is to be expected that the parties would have used much clearer words. Instead, a vague and ambiguous caveat has been inserted into a representation and warranty provision without any indication as to how that caveat is intended to operate in conjunction with the earlier provisions of the agreement or what the parties might have meant by “occasionally” or “legitimate creative purposes”.

Given the express purpose of this agreement as an exclusive licence agreement subject to the minor reservations in clause 2(b) (in respect of which Stability no longer takes issue), I consider that the only sensible and commercial reading of clause 9(b) is as a reference back to clause 2(b), as Getty Images submit. I accept of course that there is no express reference back, and that has given me pause for thought. However, this reading at least ties the caveat in 9(b) to something tangible in terms of specific activity and gives it some meaning which is not entirely at odds with the remainder of the agreement. On this interpretation, any carve-out that clause 9(b) does make certainly cannot apply to the licensing of digital content and I remind myself that not all of a rightsholder’s rights need to be the subject of an exclusive licence.

Even if I am wrong about that, it seems to me that clause 9(b) is so vague as to be unenforceable and that it cannot possibly affect the provisions of the rest of the agreement.

I reject Stability’s case that Sample Licences #34-#38 are not on their face exclusive licences.

Section 92(1) CDPA provides that an exclusive licence is “…a licence in writing signed by or on behalf of the copyright owner…”. This raises a question as to the meaning of the word “signed” and in particular what is required in terms of content and form. Prior to trial, it appeared that there would be a substantial dispute over this issue, but by the time of trial, I did not understand the parties to disagree over the following propositions of law (adapted slightly from Getty Images’ opening submissions):

Thus the parties did not disagree with the proposition (and I find) that typing “I Agree” or clicking a button labelled “I Accept” is sufficient to constitute signing of a licence within the meaning of section 92 CDPA. I understand this point of principle to apply to all licences falling within Groups K-N.

Further, by the time of trial, there were no specific issues in relation to the signing of the Contributor Agreements.

However, Stability contends that there is no evidence that Getty Images has any signatures for any of the iStock ASAs that pre-date 2012 – this applies specifically to #33 which dates back to 2006.

Stability accepts that after 2012, where a copyright owner has:

However, Stability contends that it is nonetheless necessary to consider each agreement on its own facts to determine whether the necessary acceptance in electronic form has happened or not.

In this context, Stability maintains a point on the absence of evidence of signatures in respect of SOCI Works A14 and A15, created respectively by Mr Devon Stephens and Mr Nikolay Pandev. In oral closing, Stability focussed only on A14, submitting that there was no evidence of any signature. In its written closing submissions, however, Stability continued to rely on the absence of evidence in respect of both A14 and A15 and so I deal with both in the following paragraphs of this section.

On the evidence of Ms Malnar, I find that from December 2012, when Ms Malnar was employed by the Fifth Claimant, the process for contributors uploading content to iStock and agreeing an exclusive licence required them to type “I agree” into the box underneath the terms of the exclusive iStock ASA. In her statement Ms Malnar said that she is aware through working at the Fifth Claimant that the process “did not change significantly from at least around 2010”, but she explained in cross examination that this evidence was based on “the last update date” (i.e. the last revision date) for the iStock ASA. Ms Malnar accepted that if, during the period prior to her employment, there had been differences in the way in which the actual enrolment process worked, she would not have personal knowledge of that. In the circumstances, there is no detailed evidence as to the process for enrolment that was used by the Fifth Claimant prior to December 2012 and specifically no evidence as to how (if at all) any licences were signed prior to this date.

Furthermore, Ms Malnar did not know of any record of contributors submitting the appropriate form and typing “I agree” (at any time). She did say, however, (without any further explanation) that this was “programmed on the back end” – which I understood to mean that there would likely be some digital means of identifying whether individual contributors had provided the necessary confirmation of their agreement to the terms, although there is no other evidence to that effect in these proceedings. As far as I am aware, Getty Images has not disclosed any record of the individual contributors who have typed “I Agree” in order to confirm their acceptance of the iStock ASAs.

I turn then to look at the SOCI Works A14 and A15. Getty Images’ pleaded case is that both Mr Stephens and Mr Pandev are now subject to the latest iStock ASA from 2017 (iStock ASA #38). Their case (confirmed by the evidence of Ms Cameron and the Getty Images Editorial Workflow System) is that:

In both cases, hearsay evidence is available in the form of written letters provided by Mr Stephens and Mr Pandev at the request of Ms Cameron. In his letter dated 19 March 2025, Mr Stephens says that he believes he signed up for iStock in 2006 and that:

“If I recall correctly there was an application process that included uploading a few images that were checked for technical quality before I was approved to upload more. Terms would have been accepted through the website, the image was uploaded through the website, along with model releases. Originally iStock was not exclusive, but I joined iStock’s exclusivity program before I uploaded [A14]”.

Stability did not suggest that I should attach no weight to this evidence and accordingly, I find that, on balance, the terms on which SOCI Work A14 were supplied by Mr Stephens to iStock International (#33) were signed by Mr Stephens using some form of digital acceptance. There is no evidence from Mr Stephens as to whether he has agreed to the terms of iStock ASA #38 and no evidence as to whether he was even contributing content as at the date of this agreement.

In a letter from Mr Pandev dated 20 March 2025, he says this:

“I became a contributor to iStock (which I understand is part of Getty Images) in around January 2015 and I became an exclusive contributor in around 2016 (before I uploaded [A15]). As far as I can recall, the process of becoming an exclusive contributor was very straightforward and involved me agreeing to the exclusive contributor terms online via iStock’s website”.

Again, it appears to me to be reasonable to find (based on this evidence) that Mr Pandev agreed to the iStock terms in 2016 using some form of digital acceptance. However, A15 was not taken until 2019, after Mr Pandev appears to have been moved to a new agreement. There is nothing in his letter which refers to this later agreement and thus no evidence that he accepted the terms of that agreement.

Ms Malnar’s evidence, which I accept, is that between 2015 and 2017 Getty Images engaged in a project to bring iStock and Getty Images contributors onto the same system. This appears to be the rationale behind migrating iStock contributors onto the new iStock ASA #38. Ms Malnar’s evidence under cross examination was that contributors could not upload images until they had agreed to the new terms and that they would do this by typing “I Agree” and then submitting the form. However, the submission of the form could be deferred or ignored and after a particular date contributors who had not yet confirmed their agreement would be deemed to have accepted and continue to upload content. This would happen regardless of the fact that those contributors had not formally “signed” the new terms by submitting the online form. In closing, Getty Images accepted that in such circumstances the contributor/licensor will not have signed the new licence agreement onto which he or she is being migrated within the meaning of section 92 CDPA, albeit that they contended that “the overwhelming likelihood is that, even where the licensor deferred, the licensor would then accept the terms by typing “I Agree”.

On balance, in light of Ms Malnar’s new evidence only given during cross examination, I accept that there is insufficient available evidence on which I can find that Mr Stephens and Mr Pandev in fact “signed” the new terms in 2017 by typing “I Agree” and submitting the form. Without any evidence of what course they in fact took, and without knowing whether (in general) the vast majority of contributors signed the new terms (as opposed to merely leaving them and then being deemed to have accepted them), I reject the suggestion that I can find that the “overwhelming likelihood” is that they expressly accepted those terms. Importantly, as it seems to me, there is nothing in their respective letters to that effect.

In any event, as I have said, I accept that there is evidence of Mr Stephens having “signed” iStock ASA #33 and of Mr Pandev having “signed” iStock Agreement #37 for the purposes of the CDPA.

Finally, I agree with Stability that the question of whether licences have been “signed” is fact sensitive and can only be determined by reference to the individual licences. Certainly there is no basis at this liability trial on which I can determine how many licence agreements are in fact exclusive because they have been “signed”. Although the Order of 17 January 2025 provided that the liability trial should determine “whether the Schedule 1 Agreements are exclusive licences within the meaning of s.92 CDPA (the Licensing Issue”) by reference to a sample”, now that I have heard the available evidence, I do not consider that this evidential point as to signature (as opposed to legal points about the true interpretation of the agreements) can properly or fairly be determined in this way. Specifically, the fact that I have found that a sample licence has been signed by an individual contributor, does not mean that one can fairly extrapolate that finding across all other agreements falling within the same group of licences which will involve numerous other contributors, and I decline to do so. I did not understand Getty Images to disagree with this approach.

A point is taken by Stability as to clauses in the Sample Licences permitting amendments to agreements. Stability accept that from June 2014 all Contributor Agreements and all iStock ASAs contain a clause permitting Getty Images or others unilaterally to amend these agreements – something which may be done through posts or updates on the Getty Images Websites. However, Stability says that prior to that date all agreements (namely #1-13 and 30-32) can only be varied by the written agreement of the parties (see by way of example clause 4.1 of #11).

The short answer to this point is that it has not been adequately pleaded (a reference at paragraph 15AB(iii) in the Defence in parenthesis is not sufficient in my judgment). Getty Images also point out that each Contributor Agreement expressly supersedes and cancels all previous agreements between the parties in any event (which means that the date on which clause 4.1 was introduced is of no significance). I did not understand Stability to pursue any remaining point of substance in closing. Its submissions on variation and amendment do not in any event appear to affect any of the exclusively licensed works in issue in this trial.

For completeness I observe that each of the relevant licences entered into by the Sixth Claimant is a Sample Licence within one of the relevant groups and accordingly I need make no separate determinations on the question of whether the Sixth Claimant’s licence agreements are exclusive. In any event, as Getty Images point out, the Sixth Claimant is a claimant in these proceedings in its own right and so this issue is, to all intents and purposes, purely academic.