Disney and Universal vs. Midjourney: A landmark copyright fight over genAI
In a move that could redefine the boundaries between generative AI (genAI) and intellectual property, Disney and Universal have joined forces to file a lawsuit against Midjourney, one of the world’s most popular AI image generators.
You may think you’ve heard this story before — The New York Times‘ 2023 lawsuit against OpenAI and Microsoft and News Corp. vs. Perplexity — but this case is different. For one thing, this is the first time major Hollywood studios with far more cash to prosecute the case have directly targeted a genAI company for copyright infringement. For another, Disney and Universal are both big AI users.
Disney and Universal allege that Midjourney’s platform is a “bottomless pit of plagiarism.” With Midjourney, all a subscriber need do to create unauthorized images of iconic characters such as Darth Vader, Elsa, the Minions, Shrek, and many others is to type in a prompt.
Original ‘Iron Man’ image is on the left; genAI-created image is on the right.
Disney/Universal lawsuit
Original image is on the left; genAI image is on the right.
Disney/Univeral lawsuit
There’s no question anyone can do it. If you don’t feel like trying it yourself, just look at some of the images in the Disney/Universal lawsuit complaint (shown above).
Can you tell which ones are the original from Avengers: Infinity War and which were generated by Midjourney? I can’t, and I have a good eye for this kind of thing. GenAI image creation has come a long way since all you had to do was count the number of fingers. (The originals are on the left.)
This didn’t require some kind of fancy prompt. As researchers have found, all you had to do to generate them was name the character and use the keyword “screencap,” and you quickly received your fake image. Or you could simply ask for “master super villain” or “armored superhero.”
“This is not a ‘close call’ under well-settled copyright law,” the lawsuit claims.
Correct. It’s not close at all.
In the company’s defense — if you can call it that — Midjourney CEO David Holz is on record as saying his AI has been trained on “just a big scrape of the Internet.” What about copyrights on these images?
“There isn’t really a way to get a hundred million images and know where they’re coming from. It would be cool if images had metadata embedded in them about the copyright owner or something. But that’s not a thing; there’s not a registry. There’s no way to find a picture on the Internet, and then automatically trace it to an owner and then have any way of doing anything to authenticate it.”
I think when it comes to Disney, it’s pretty darn obvious who owns the images. I mean, this is Disney, the big bad wolf of copyright. After Walt Disney lost the copyright to his earlier character, Oswald the Lucky Rabbit, he made darn sure that, starting with Mickey Mouse in 1928, he’d lock down its intellectual property for as close to forever as he could.
Indeed, over the decades, Disney has been behind laws to increase copyright coverage from a maximum of 56 years in 1928 to 75 years with the Copyright Act of 1976, and then 95 years with the Sonny Bono Copyright Term Extension Act (CTEA) of 1998, better known as the “Mickey Mouse Protection Act.”
Disney has also never been shy about suing anyone who’d dare come close to their copyrighted images. For example, in 1989, Disney threatened legal action against three daycare centers in Hallandale, FL., for painting murals of Disney characters such as Mickey Mouse, Donald Duck, and Goofy on their walls.
Why? Because it’s all about the Benjamins.
Disney, and to a lesser extent Universal, live and die from monetizing its intellectual property (IP). Mind you, much of that IP is generated from the public domain. As the Center for the Study of the Public Domain noted: “The public domain is Disney’s bread and butter. Frozen was inspired by Hans Christian Andersen’s The Snow Queen. … Alice in Wonderland, Snow White, The Hunchback of Notre Dame, Sleeping Beauty, Cinderella, The Little Mermaid, and Pinocchio came from stories by Lewis Carroll, The Brothers Grimm, Victor Hugo, Charles Perrault, Hans Christian Anderson, and Carlo Collodi.”
What Disney did with the public domain, MidJourney, and the rest of the AI companies want to do with pretty much everything on the Internet. OpenAI CEO Sam Altman, for instance, has consistently argued that training genAI on copyrighted data should be considered “fair use.” He’s not alone.
On the other side of the fence, Disney and Universal’s lawsuit is not just about damages, which the pair puts at $150,000 per infringed work, but about setting a precedent. They want to stop Midjourney’s image and soon-to-be-launched video generation services in their tracks.
At the same time, the film studios freely admit they’re already using genAI themselves. Disney CEO Bob Iger has said the technology is already making Disney’s operations more efficient and enhancing creativity. “AI might indeed be the most potent technology our company has ever encountered, particularly in its capacity to enhance and allow consumers to access, experience, and appreciate our entertainment.” He also, of course, stressed that, “Given the speed that it is developing, we’re taking precautions to make sure of three things: One, that our IP is being protected. That’s incredibly important.”
This lawsuit is more than a Hollywood squabble; it’s a watershed moment in the ongoing debate over genAI, copyright, and the future of creative work. Previous cases have challenged the boundaries of fair use and data scraping, but none have involved the entertainment industry’s biggest players.
It might seem like a slam dunk for the Hollywood powerhouses. The images speak for themselves. But, if there’s one thing I’ve learned in covering IP cases, it’s that you never know what a court will decide.
Besides, there’s a real wild card. Donald Trump’s AI Action Plan is still a work in progress. The AI companies are arguing that it should give them permission to use pretty much anything as grist for their large language models (LLMs), while the media companies want all the copyright protection they can get.
Which way will Trump’s officials jump? We don’t know. But I have a bad feeling about where they’ll go.
You see, what we do know is that after the Copyright Office released a pre-publication version of its 108-page copyright and AI report, which strived to strike a middle ground “by supporting both of these world-class industries that contribute so much to our economic and cultural advancement.” However, it added that while some generative AI probably constitutes a “transformative” use, the mass scraping of all data did not qualify as fair use.
The result? The Trump administration, while not commenting on the report, fired Shira Perlmutter, the head of the Copyright Office, the next day. She’s been replaced by an attorney with no IP experience.
Oh, also, hidden away in Trump’s “One Big Beautiful Bill” is a statement that imposes a 10-year ban on the enforcement of any state or local laws or regulations that “limit, restrict, or otherwise regulate” AI models, AI systems, or automated decision systems. If that becomes law, whatever is in Trump’s AI Action Plan is what we’ll have to live with for the next few years.
As an author, I can’t tell you how unhappy that prospect makes me. I expect Trump to side with the AI companies, which means I can look forward to competing with my own repurposed work from here on out. Disney and Universal vs. Midjourney: A landmark copyright fight over genAI – ComputerworldRead More