In June, Disney Enterprises Inc., alongside its related entities, Marvel Characters Inc, MVL Film Finance LLC, Lucasfilm Ltd. LLC, Twentieth Century Fox Film Corporation (Marvel) and Universal City Studios Productions LLLP and DreamWorks Animation L.L.C (Universal), issued proceedings in the United States District Court, Central District of California, against Midjourney Inc, a company which provides generative AI services to users on a subscription basis.

The US has gained worldwide attention over the past year after a string of cases raised against the developers behind generative AI models, including another involving Midjourney. On 12 August, US District Judge William Orrick ruled that the companies Stability AI, Midjourney, DeviantArt and Runway AI were violating artists’ rights by illegally storing their works in their image generation systems. Recently, as discussed in our article here, the US District Court for the Northern District of California issued two decisions contemplating the question as to whether the use of copyright works as AI training materials can be excused under the ‘fair use’ doctrine in the US.

The case

Disney and Universal’s lawsuit has specifically been filed against Midjourney’s AI Image Service, which produces images in response to text prompts provided by users. Disney and Universal have alleged Midjourney has engaged in copyright infringement of their works through several acts, including:

• it has ‘cleaned’ copies of the copyrighted works that Midjourney had downloaded and accessed without the consent of Disney and Universal; and
• it has used the processed data derived from the copyrighted works to train the AI Image Service in a manner that resulted in infringement of the copyrighted works.

Midjourney has now filed its defence to the lawsuit, denying liability and raising several defences including the doctrine of fair use and the doctrine of unclean hands, alleging that Disney and Universal use and benefit from generative AI models including Midjourney and including in connection with some or all of the asserted works.

Additionally, Midjourney has submitted that its AI Image Service is a type of neural network which has been designed to use users’ instructions to create original images only at the direction of its users, guided by their instructions.

Why is this interesting?

The argument that Midjourney’s AI Image Service operates without a system resembling a memory and instead uses statistical patterns to generate images solely in response to a prompt, provides a different perspective to current discussions regarding generative AI.

While we are yet to receive any indication as to how the submission will be treated by US courts, likening the Midjourney AI Image Service to a system of internalising patterns and techniques that merely creates images at the direction of users and therefore is not actively seeking to product copyrighted works, is a different approach to the submissions of previous AI infringement related cases.

It appears that Midjourney is attempting to shift the infringing mindset from the generative AI, in this case the AI Image Service, to the mindset of the users of the AI, arguing that AI is just a tool in allowing the desired output.

The argument could be raised that if deliberate and very specific prompts are used to create an almost identical version of a copyrighted piece of work, this could be deemed infringement because the user of the AI Image Service was intending to create a copy of the original work using incredibly complex prompts. Thus, a question arises around whether the allegation of copyright infringement should be placed on the user with the infringing mindset who is providing the prompts, rather than the AI Image Service as a mere tool which is used to create the alleged infringement.

Midjourney’s submission also gives rise to the alternative hypothetical where if the AI Image Service is prompted to create an image that is objectively similar to a copyrighted work, but the user has not had an infringing mindset, is this then considered a non-infringing independent work?

The legal intersection of AI and intellectual property protections such as copyright over creative works is an area of law which is evolving at a rapid pace and the current action between Disney, Universal and Midjourney will provide further interesting developments

HWLE’s Intellectual Property team has extensive experience advising on the intersection of emerging technologies, creative output and relevant legislation.  If you have any questions or concerns regarding artificial intelligence and copyright infringement, do not hesitate to contact us.

This article was written by Luke Dale, Partner, and Bellarose Watts, Law Graduate.