Generative AI Models and Infringement of IP｜Behind the Wig

Sebastian Hughes

Barrister

The ground-breaking litigation between Getty Images and Stability AI highlights the problems IP owners face in enforcing their rights against generative AI models.

Getty Images – the well-known licensor of digitally-stored photographs – has taken on Stability AI in concurrent litigation in England and the United States. The battle lines have been drawn in respect of the model used by Stability AI to generate images that are said to infringe the copyright in the photographs owned by Getty Images, and also the Getty Images trade mark added to its photographs as watermarks. The trade mark infringement claim is straightforward. In the English litigation, the court found, in its judgment handed down in November 2025, that the (distorted) versions of the Getty Images watermark in the Stability AI generated images infringed the Getty Images trade mark.

The copyright claim however gave rise to several difficulties. Getty Images alleged that Stability AI infringed its copyright by (1) copying the photographs, to be used to train Stability AI’s diffusion model; and (2) importing infringing articles into the United Kingdom – namely, the mathematical model weights used by Stability AI to generate the allegedly infringing images.

As the act of copying a copyright work is an act of “primary infringement” that must take place within the jurisdiction, the parties agreed to drop the claim in the English court relating to the Stability AI training model. That part of the claim has been reserved to the ongoing litigation in the United States, as it is common ground that the images used to train the Stability AI model were downloaded in the United States.

Picture generated by AI

Unfortunately for Getty Images, its secondary infringement claim failed, the court reasoning that the numerical model weights used by Stability AI to generate images (essentially by a process of AI-generated reverse engineering) – were not “infringing copies” of the Getty Images photographs. Whether this was the correct decision is yet to be determined. The appeal from the first instance decision is pending.

A central issue to be determined on appeal is whether the Stability AI model weights consist of articles for the purposes of secondary infringement, even if they do not comprise infringing copies of the original copyright works.

Meanwhile, the concurrent proceedings in the United States have reached the discovery stage, after Getty Images successfully resisted Stability AI’s motion to dismiss. In its April 2026 judgment, the court confirmed that Getty Images’ claims for infringement by copying of photographs to train the Stability AI diffusion model, and Getty Images’ claims for trade mark infringement and unfair competition, will proceed to trial.

So where does this leave us in Hong Kong? It may well be that – irrespective of the outcome of the appeal in England – amendments need to be made to our copyright legislation, to address the technical infringement issues arising from the use of AI-generated numerical diffusion models. The Copyright Ordinance already provides for infringement by making adaptations of copyright works – for example, a translation of a novel; or conversion of a novel into a play. The adaptations are not themselves infringing copies of the original works. By drawing an analogy with the existing adaptation right, one potential route is to amend the legislation to stipulate that importation of articles consisting of AI-generated model weights amounts to secondary infringement, even if the model weights themselves are not infringing copies of the original copyright works.

Mr. Sebastian Hughes is a Council Member of the Hong Kong Bar Association and a Member of its Intellectual Property Committee and its Standing Committees on Mainland Affairs and on Welfare and Sports. He practises as a barrister and arbitrator. His practice focuses on intellectual property, commercial, cryptocurrency, white collar fraud, insolvency, company, insurance, employment, matrimonial finance, and costs/taxation matters.

Sebastian Hughes
Barrister

Photo: Hong Kong Bar Association

Behind the Wig is a weekly legal column written by practicing barristers specialising in criminal, civil, and commercial law.  Drawing on their legal expertise and practical experience, or sharing their observations and insights as barristers, they analyse social issues, encourage readers to interpret everyday matters through a legal mindset, and promote the spirit of the rule of law.　

The views expressed in this article are the author’s own and do not reflect TVB’s editorial stance.