Court of Appeal considers definition of pornography in AI intellectual property dispute

Interpreting the meaning of words and phrases is a critical skill for lawyers.  Media and communications lawyers in particular often interpret not only the strict legal meanings, but the ‘natural and ordinary’ meanings of defamatory statements.  In Getty Images (US), Inc. & Ors v Stability AI Ltd [2025] EWCA Civ 749, Lord Justice Males and Lord Justice Arnold gave judgment on an urgent mid-trial appeal about the meaning of the word ‘pornography’, and in particular, whether ‘pornography’ alone should also include reference to illegal pornography.

The issue arose in an extremely high-profile (and important) trial before Mrs Justice Joanna Smith in the Intellectual Property List of the Business and Property Courts: Getty Images (by various companies in the group) v Stability AI Limited – operators of the large language model (LLM), Stable Diffusion, which is a deep learning text-to-image model used to generate synthetic images requested by end users.  Judgment is reserved until later in the year and the outcome of the trial will have far-reaching consequences for the LLM landscape, as it concerns allegations of infringement of copyright, data base right, and trade marks, as well as passing off.

At the start of the trial, Stability objected to a line of argument contained in Getty’s trial skeleton argument.  In the skeleton, Getty relied on Stable Diffusion’s ability to create synthetic images depicting child sexual abuse material (‘CSAM’) bearing Getty’s watermark as examples of detriment done to its brand.  Stability objected on the basis that the pleaded detriment was the creation of “pornographic” images, with no mention of CSAM.

Joanna Smith J declared that the CSAM allegations in the skeleton argument were not pleaded, and there was an obligation on a party pleading serious allegations such as fraud or illegal conduct to be sufficiently clear that the opposing party fully understands the case they have to meet.  The effect of this was that Getty could not rely on its trade marks being endorsed on CSAM as an example of a detriment done to its brand.

Getty appealed on two grounds:-

1. That Joanna Smith J made an error when interpreting the pleading: that the term “pornography” is not limited to legal pornography, but is broad enough to encompass legal and illegal pornography, and that child pornography or CSAM is simply a type of illegal pornography; and
2. That Joanna Smith J made an error when applying the principles of pleading serious allegations: that the allegation was not that Stability was, itself, guilty of serious wrongdoing, but that it had built a system capable of misuse by others.

In deciding the matter, Arnold LJ (with whom Males LJ agreed), accepted that “pornography” was sufficiently general to include reference to both legal and illegal pornography, and, by extension, child pornography/CSAM.  Arnold LJ went so far as to give a dictionary example of pornography: the Oxford English Dictionary giving a 2005 example of the use of the pornography in context as “Sentencing has been set for a man who pleaded guilty to downloading child pornography on a word computer”.

It is clear from this that the Court of Appeal’s position is that, at least in the context of legal pleadings, the word “pornography” alone can be interpreted to mean both legal and illegal pornography.

Despite accepting this, Arnold LJ dismissed the appeal on the basis that at a case management conference earlier in the year, Counsel for Getty had accepted that the purpose of an amendment to the relevant part of the pleading was to ensure that Stability was not ambushed at trial with material it was not expecting to have to address, and that it was obliged to plead specific examples relied upon to support its wider case.  The pleading plainly failed to do this, given Stability (and Joanna Smith J’s) surprise at having to deal with the CSAM point at the start of trial.

Males LJ, agreeing with Arnold LJ, also noted that it was plainly not in Stability or the Court’s contemplation that CSAM material would be relied upon, because if it was, the Court would have had to give detailed directions as to how such material would be handled.  This seems to be a reference to the strict liability in criminal law for those possessing CSAM.

Males LJ also observed how quickly the Court of Appeal had been able to consider and hear the appeal.  The judgment of Joanna Smith J was given on Monday 9 June 2025.  An application for permission to appeal was made on Thursday 12 June 2025, and the Court of Appeal’s judgment was given on 16 June 2025: the appeal process took only a week.

The practical lesson is that pleadings must be very precise.  That is, of course, a gross oversimplification: the specifics of trial strategy are not typically explored at the pleading stage.

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