In a response to Disney and Universal’s joint copyright infringement lawsuit, Midjourney points out that the media companies have used generative AI tools.
Midjourney Responds to Disney and Universal Lawsuit
Midjourney states in their response (via Deadline) that Disney and Universal “have benefitted from and continue to benefit from Midjourney and other, similar generative AI tools.” Midjourney claims dozens of their subscribers are associated with Disney and/or Universal corporate email addresses. They state their AI tool is popular among visual effects companies and other vendors who have worked with Disney and Universal.
Soon after the lawsuit was filed, Disney was accused of using AI to create Oogie Boogie Bash posters. It also recently came to light that they almost created an AI deepfake of Dwayne Johnson for use in the live-action Moana, but legal complications is one reason they reversed the decision.
Midjourney quotes Disney CEO Bob Iger’s positive comments regarding AI. During March’s annual shareholder meeting, Iger said, “AI may, in fact, be the most powerful technology that our company has ever seen, including its ability to enhance and enable consumers to access, experience, and enjoy our entertainment. […] We believe in the power and the value and the importance of human creativity, and we also appreciate from over 100 years of experience that technology is an invaluable tool for artists, whether they’re filmmakers or Imagineers.” (via The Hollywood Reporter)
Iger also praised AI at the Canva Create showcase in 2024, saying, “Don’t fixate on its ability to be disruptive — fixate on [tech’s] ability to make us better and tell better stories. Not only better stories, but to reach more people.”
Midjourney addresses Disney and Universal’s claim that AI training on their copyrighted images violates their rights, “even though only a small fraction of those images may contain individual frames from Plaintiffs’ films and shows.”
As a matter of equity, Plaintiffs cannot have it both ways, seeking to profit — through their use of Midjourney and other generative AI tools — from industry-standard AI training practices on the one hand, while on the other hand accusing Midjourney of wrongdoing for the same. But Plaintiffs are also wrong on the merits. Copyright law does not confer absolute control over the use of copyrighted works. The limited monopoly granted by copyright must give way to fair use, which safeguards countervailing public interests in the free flow of ideas and information. Training a generative AI model to understand concepts by extracting statistical information embedded in copyrighted works is a quintessentially transformative fair use — a determination resoundingly supported by courts that have considered the issue.
Midjourney also notes that they, as a company and tool, are not the ones using the images, but their users are.
[Midjourney] assists with the creation of images only at the direction of its users, guided by their instructions, in what is often an elaborate and time-consuming process of experimentation, iteration, and discovery.
And while Midjourney users are required by Midjourney’s Terms of Service to refrain from infringing the intellectual property rights of others, including Plaintiffs’ rights, Midjourney does not presuppose and cannot know whether any particular image is infringing absent notice from a copyright owner and information regarding how the image is used. Indeed, there are any number of legitimate, noninfringing grounds to create images incorporating characters from popular culture like those claimed by Plaintiffs, including non-commercial fan art, experimentation and ideation, and social commentary and criticism. Plaintiffs seek to stifle them all.
Midjourney argues that Disney and Universal should have followed Midjourney’s Digital Millennium Copyright Act notice and takedown procedure and identified specific images they believe are infringing on their copyright.
In their further response to individual points of the original lawsuit, Midjourney straightforwardly “denies that it seeks to reap the rewards of Plaintiffs’ creative investment.”
Disney and Universal’s Lawsuit
Disney and Universal stated their lawsuit is in regard to the “hundreds, if not thousands, of images generated by [Midjourney’s] Image Service at the request of its subscribers.”
By helping itself to plaintiffs’ copyrighted works, and then distributing images (and soon videos) that blatantly incorporate and copy Disney’s and Universal’s famous characters — without investing a penny in their creation — Midjourney is the quintessential copyright free-rider and a bottomless pit of plagiarism.
Disney’s Compliance Officer Horacio Gutierrez said in a statement when the lawsuit was filed:
Our world-class IP is built on decades of financial investment, creativity and innovation — investments only made possible by the incentives embodied in copyright law that give creators the exclusive right to profit from their works. We are bullish on the promise of AI technology and optimistic about how it can be used responsibly as a tool to further human creativity. But piracy is piracy, and the fact that it’s done by an AI company does not make it any less infringing.
Disney’s History With AI
AI has been a major discussion point in entertainment and the world at large for the past several years. It was a major issue during the 2023 WGA and SAG-AFTRA strikes as writers and actors demanded safety from being replaced by the technology and their writing or performances being used in AI without their consent.
In 2022, Disney faced criticism for the AI-generated opening sequence of Marvel’s Secret Invasion. In 2023, they created an AI task force to evaluate uses of the technology. They reportedly considered including an AI-generated character in the upcoming TRON: Ares — which is about an AI being who ends up in the real world — but changed their minds.
In May, Fortnite introduced an AI Darth Vader, immediately facing controversy and a SAG-AFTRA lawsuit. James Earl Jones, the voice of Darth Vader, signed over AI rights for his performance before he died in 2024.
Gutierrez recently told The Wall Street Journal, “AI will be transformative, but it doesn’t need to be lawless.”
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