In 2025, the English High Court delivered what many have described as a procedural waypoint in the ongoing clash between traditional intellectual property rights and the challenges posed by generative artificial intelligence. In Getty Images v. Stability AI, the Court held that an AI model that does not store or reproduce copyrighted works in a traditional sense is not, by itself, an “infringing copy” under UK copyright law, effectively limiting a wholesale expansion of copyright liability into the machine-learning architecture itself.
However, as we move through early 2026, this ruling is increasingly viewed not as a final word, but as the opening salvo in a broader debate regarding human agency. While the tech industry celebrated a technical victory, the focus of litigation has shifted from the "machine" (copyright in the output) to the "person" (the data rights in the input), as the law begins to grapple with how individual likeness and persona are protected when the tools of replication become frictionless.
AI Isn’t the Only Frontier: Personal Image Rights Still Matter
Much of the public debate around ‘image rights’ has focused on the rise of AI: who owns the outputs of generative models, and whether training on copyrighted works without consent constitutes infringement. Yet a crucial point too often overlooked is that people have¸ and should retain, rights in their own likeness and persona, independent of technological medium.
In the UK, there is no standalone statutory "right of publicity", or general “image rights”. Nevertheless, in practice, individuals routinely assert control through a patchwork of Passing Off, Privacy, and the newly enforced Data (Use and Access) Act 2025. This contractual and regulatory foundation ensures that individuals, rather than machines, determine the terms on which their likeness is exploited.
The Data (Use and Access) Act 2025
The Data (Use and Access) Act 2025 (DUAA) has introduced a significant shift in how personal images are treated under the law. Far from being "just data," the DUAA reinforces the principle that an individual's likeness is sensitive personal information. Key developments include:
- Heightened Subject Access Rights: Individuals can now demand transparency regarding whether their biometric data is being processed. The DUAA clarifies that organisations must conduct "reasonable and proportionate" searches to identify this data, making it harder for AI firms to hide behind "black box" architectures.
- The Right to Complain: As of early 2026, a new statutory right to complain requires organisations to acknowledge likeness-related grievances within 30 days. This creates a fast-track for individuals whose faces are used in "deepfake" advertisements or unauthorised commercial "avatars."
- Automated Decision-Making Safeguards: The Act permits broader use of AI but mandates "meaningful human intervention" for significant decisions. In the context of image rights, this suggests that the automated "scraping" and "re-generation" of a person's face for commercial gain cannot bypass human accountability.
The Dispute: Likeness vs. Innovation
The competing interests of individual creators and AI developers have converged in a series of high-stakes disputes as 2026 begins. On one side, AI developers argue that "pattern recognition" of a face is no different from a human artist observing a subject to paint a portrait; they contend that a restrictive "right to one's image" would effectively lock down the internet and stifle the next generation of UK-led innovation.
Conversely, rights holders point to the recent cases where synthetic "digital twins" were weaponised in fraudulent ad campaigns. For these individuals, the argument isn't about blocking technology, it is about preventing the "hollowing out" of human identity. Under the DUAA, this debate has moved from the theoretical to the regulatory. The Act’s new "Right to Complain" and heightened Subject Access requirements mean that "biometric likeness" is now a protected category of data, regardless of whether a copyright infringement has occurred.
Why Human Agency Remains the Legal Anchor
The core of this dispute remains a recurring theme in UK law: whether human agency matters. Copyright law has traditionally required an "authorial contribution" as a prerequisite for protection. This is not a mere technicality; it is a principle that anchors creative rights in the intention, choices, and labour of actual people.
This is precisely why English courts have historically recognised a photographer’s rights over the images they compose and capture. Even when the act of capture appears automated (such as a high-speed shutter or a timed release), the creative "spark" (the choice of lighting, angle, and timing) remains human.
By extension, individuals who license the commercial use of their persona - from global sports stars to digital influencers - are not just selling a file; they are licensing their human agency. These rights do not evaporate simply because digital reproductions are now infinitely scalable, or because an AI can mimic visual features with unsettling accuracy. In the eyes of the law, a machine cannot "intend" to create a likeness; it can only calculate one.
Bridging the Gap: The 2026 Reality
For businesses navigating this landscape, the takeaway is clear: the Data (Use and Access) Act 2025 provides the mechanism for individuals to claw back control over their "data-fied" selves.
As we move toward the government’s March 2026 report on AI and Copyright, the strategic risk has shifted. If an AI model is trained on your likeness without a verifiable "licensing chain" or a "recognised legitimate interest," the developer is no longer just facing a slow-moving copyright claim; they are facing an immediate statutory breach with significant regulatory exposure.
How To Get In Contact
To find out more or if you require assistance with these matters, speak with our Intellectual Property Team or our Dispute Resolution Team on +44 (0)204 600 9907 or email info@culbertellis.com.
Accurate at the time of writing. This information is provided for general information purposes only and should not be relied upon as legal advice.
