Getty v Stability AI: Exclusive Copyright Licences and Clickwrap Signatures

In the prior blog posts,  Copyright Infringement and AI: Insights from Getty v StabiliyAI Trademark Infringement and AI: the Getty and Cohere cases,  I summarized the landmark decision in Getty Images (US) Inc v Stability AI Limited [2025] EWHC 2863 (Ch), as it related to Stability AI’s liability for secondary copyright infringement and trademark infringement. But, the U.K. court’s decision in Getty also dealt with two other important issues related to Getty’s status to sue for copyright infringement. The first was that Getty’s licences that purposed to be exclusive under New York law did not give Getty the status to sue under the UK copyright law, the CDPA. The second, was to recognize that a mere click to online terms was sufficient to satisfy the signature requirement under the CDPA.

Issues addressed in this post

This post analyzes the UK High Court’s decision in Getty Images (US) Inc v Stability AI Ltd on (1) when an exclusive copyright licence confers standing to sue under the CDPA, and (2) whether clickwrap agreements satisfy statutory signature requirements. In particular, this blog post addresses these questions:

• When does an exclusive licence give standing to sue?
• Can an exclusive licence be shared among affiliates?
• What is an exclusive licence under the U.K. CDPA?
• Does clicking “I Agree” satisfy copyright signature requirements?
• Do clickwrap agreements satisfy statutory signature requirements?

Issue 1: Exclusive Copyright Licences and Standing to Sue (CDPA)

Under the CDPA, only owners of copyrights or exclusive licensees have the status to sue for copyright infringement. Under the CDPA an “exclusive licence” is defined as a ‘licence in writing signed by or on behalf of the copyright owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner”.

The principles governing the status of a licensee to sue for infringement were summarized by Justice Smith following the prior U.K. case, Oxford Nanopore Technologies Ltd v Pacific Biosciences of California Inc [2017] EWHC 3190 (Pat), [2018] Bus LR 353 as follows:

“(i) Whether or not a licence is an exclusive licence [under the relevant statute] is a matter for English law…;

• A licence which purports to be an exclusive licence may not necessarily be so. Identifying an exclusive licence depends on a proper construction of the document or documents…An exclusive licence will be expressly so: circumstances in which an exclusive licence will be implied will be rare, if they exist at all;

• It is for the party asserting that it is an exclusive Licensee to demonstrate that it is…;

• The assessment of whether or not a licence is exclusive is not a “once and for all assessment”…An exclusive licence may confer a power to convert the licence into a non-exclusive licence…;

• The “essential element” of an exclusive licence is that it is a licence to the exclusion of all other persons, including [the copyright owner]…;

• It is possible to have a plurality of exclusive licences in respect of any one [copyright]…;

• But each exclusive licence may only be granted to one person – a licence will not be exclusive if granted to a number of entities, even if they are under the same control…;

• An exclusive licensee may grant sub-licences to “persons authorised by him”…;

• There is a distinction to be drawn between a licence and an equitable right to call for a licence…;

• Where an equitable right to call for a licence is conditional… the otherwise exclusive licence will remain exclusive unless and until the contractual conditions are fulfilled that enable the grant of the licence…”.

Many of the licences Getty relied on at trial were entered into under New York law.  Accordingly, the court embarked on a two stage process to determine if the licences gave Getty the status to sue. The court relied on the decision in Dendron GmbH v University of California (No. 3) [2004] EWHC 1163 (Ch), which held that where a licence agreement is governed by foreign law, the interpretation and construction of that agreement will be subject to its governing law. However, once any disputed issues of interpretation are resolved, the question of whether the licence is an “exclusive licence” is a question of English law applying the CDPA to the terms of the licence. As noted above, an “exclusive” licence granted to a group of companies is not considered to be exclusive under the CDPA.

Under §101 of the U.S. 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. However, under New York law, an exclusive licence may be shared between one or more parties.

Getty had relied on different sample licence templates to support its status to sue. For example, under Sample Agreement 2, “Getty Images” was defined as meaning “Getty Images (US), Inc and each of the entities, controlling, controlled by or under common control with Getty Images”. The grant of licence was worded as follows:

“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…”.

After construing these and other terms in the sample licence agreement under New York law the court determined that the licence grant was to multiple parties and hence was not an exclusive licence under the CDPA.

The court also found these other exclusive licence grants to “Getty Images” to be to multiple parties and not exclusive under the CDPA.

Sample Licence 3

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

Sample Licences #8, 10, 11, 13 and 30:

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

Sample Licence #32:

“[Getty Images (US), Inc.]/[Getty Images International] and, where the context implies, each of the entities, controlling, controlled or under common control with [Getty Images (US), Inc.]/[Getty Images International]”.

The court came to a different conclusion with respect to Getty sample licences #17 and #19 which gave Getty the right to sublicence rights to Affiliates.

“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”

Issue 2: Clickwrap Agreements and the CDPA Signature Requirement

Section 92(1) of the CDPA provides that an exclusive licence is “…a licence in writing signed by or on behalf of the copyright owner…”.  On the facts, Getty agreements were “signed” by copyright owners by typing “I Agree” or clicking a button labelled “I Accept”. This raised a question as to whether such forms of agreement also met the signature requirements of the CDPA. The court held they did.

The court approached the issue first by noting that since the term “writing” in the CDPA was broadly defined, it “follows that signed’ should be interpreted equally broadly because the licensor needs to be able to ‘sign’ the document in the medium in which it exists”. The court noted that “the principal function of a signature is to demonstrate an intention of the party to authenticate the document” relying on the well known cases, Goodman v J Eban Ltd [1954] 1 QB 550 and Bassano v Toft [2014] EWHC 377 (QB). Also, that the requirement to “sign” in the CDPA must be interpreted as “always speaking” and should take account of technological developments which the legislators might not have foreseen, relying on the other well known cases,  News UK & Ireland Ltd v Commissioners for His Majesty’s Revenue and Customs [2023] UKSC 7; and Hudson v Hathway [2022] EWCA Civ 1648.

The court then, curiously, relied on Bassano v Toft stating that “Clicking on an ‘I Accept’ tick-box on a website has been held to be sufficient to constitute a valid signature”.  It also noted that “typing a forename or automatically generating an email signature in the footer of an email” was sufficient to constitute signing a written document, relying on Neocleouse v Rees [2019] EWHC 2462 (Ch) and Hudson v Hathway [2022] EWCA Civ 1648.

Comments and practical and comparative Implications

Issue 1: The exclusive licence issue

The exclusive licence finding by the U.K. court in Getty is significant for persons who intend to receive licences they can enforce in legal proceedings for infringement or who seek other statutory benefits under copyright laws that are only conferred on copyright owners and exclusive licensees. For example, under the Canadian Copyright Act:

• Only the owners of copyright and persons holding an “interest” in copyrights can bring legal proceedings for copyright infringement. Under the Act, an exclusive licence is defined as “an authorization to do any act that is subject to copyright to the exclusion of all others including the copyright owner, whether the authorization is granted by the owner or an exclusive licensee claiming under the owner”. This definition is similar to how the term is defined under the CDPA.
• The Act clarifies that exclusive licensees have the status to sue for infringement by deeming it “always to have been the law that a grant of an exclusive licence in a copyright constitutes the grant of an interest in the copyright by licence”.
• The Act also clarifies that a “right of action for infringement of copyright may be assigned in association with the assignment of the copyright or the grant of an interest in the copyright by licence”.
• The Act permits holders of an interest in a copyright to register their interest and gives them certain presumptions which are helpful in infringement proceedings.
• The Act also confers specific remedies for infringement on holders of interests in copyrights including to obtain wide area injunctions.

Issue 2: The signature issue

With the advent of modern digital e-commerce models, courts around the world have struggled to apply well known principles related to satisfying signature formalities. These issues remain notwithstanding the passage of e-commerce laws around the world that were intended to recognize digital signatures.

The courts have had little difficulties finding online agreements can satisfy writing requirements. The courts also have had few difficulties recognizing that online actions that mimic off line methods of authenticating documents can satisfy signature requirements. For example, a person can digitally “sign” a document by typing his or her name at the bottom of emails or text messages, or by having a document signing system such as Docusign insert or generate his or her name and initials on “signed” documents. In some cases, courts have also recognized as signatures persons’ names that are automatically generated using messaging systems such as email systems that automatically generate a person’s name at the bottom of emails or even in “from” headers in emails.

But courts have struggled with other types of online agreement mechanisms where the action of persons ambiguously manifest not only an agreement to terms such as an offer or acceptance of an agreement, but purport to go further to authenticate the document and thereby “sign” it. The difficulties in this area are exemplified by two recent Canadian cases which disagreed on whether an emoji should be accepted as a signature.

• Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115 finding an emoji was a signature.
• Ross v Garvey, 2025 BCSC 705 holding that “That interpretation is that, in order for the contract to be enforceable, the party charged must have inserted a signature in the writing for the purpose of authenticating the document. While it need not be a traditional handwritten signature, the contract must bear at least some sort of a formal inscription, made manually or electronically, that reflects the identity of the party who made it. In so doing, there is some assurance that the signatory not only wishes to be bound, but also appreciates the significance of the act they have agreed to and the importance of performing it in accordance with the terms set out in the document.”

The court in Getty recognized typing “I Agree” and clicking a button labelled “I Accept” satisfied the writing and signature requirements under the CDPA, a finding that was not contested by the parties. In doing so the court relied on Bassano v Toft & Ors [2014] EWHC 377 (QB) (26 February 2014). But, in that case when the person clicked “I Agree” to “sign” a loan agreement, the e-commerce system generated a document with her name on it. The Getty court did not find any comparable action by its online e-c0mmerce platform.

In any event, other courts have come to similar conclusions as the Getty court. For example,

• A U.S. District court in Groff v. America Online, Inc., 1998 WL 307001 (Rhode Islan. S.C. 1998) expressed an opinion that by clicking an “I Agree” button during the installation of software the user had effectively signed the agreement.
• In Kamath v Coinbase, Inc. (N.D.Cal. Mar 5, 2024) another U.S. court held that the act of clicking “[a]ccept terms” “qualified as an electronic signature under federal and California law because it is ‘an electronic sound, symbol, or process . . . adopted by a person with the intent to sign the record.’ 15 U.S.C. § 7006(5); see Cal. Civ. Code § 1633.2(h) (“electronic signature” means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.”). Further, this Court has recognized that “[e]lectronic signatures and clicking “[a]ccept” are valid means of expressing assent to a contract.” Mikhah v. University of Phoenix, No. C16 00901 CRB, 2016 WL 3401763, at *6 (N.D. Cal. June 21, 2016) (citing Cal Civ. Code § 1633.7(b)).
• The U.S. Fourth Circuit Court of Appeals reached a similar conclusion in Metro. Reg’l Info.sys v. Amer. Home Realty Net, 722 F. 3d 591 (4th Cir. 2013) holding that a person who clicked “yes” to electronic terms of service had met the signature requirements under the United States Copyright Act.

Key Takeaways

• An exclusive licence under foreign law may fail exclusivity under the CDPA and other copyright laws if the grant is to multiple persons.
• Group-company licence grants undermine exclusivity under UK copyright law and may have similar impacts under other copyright laws.
• Copyright laws are different in a number of respects from the copyright laws in other countries. Under copyright laws such as those in the U.K. and Canada, foreign copyright agreements including assignments and exclusive licences must ultimately satisfy the requirements of the local copyright laws, e.g., the U.K. or Canadian law, even if their construction is governed by different governing laws.
• Clickwrap assent can satisfy CDPA and other signature requirements even without name-generation. But, given the uncertainty in this still developing area of the law, it it prudent to have persons use mechanisms that add or automatically generate a person’s signature.
• Multi-jurisdictional licences require jurisdiction-specific drafting discipline.