Disney and Universal Sue Midjourney Alleging Copyright Infringement

AI copyright litigation is heating up as cases work their way through the legal system. We’ve previously covered copyright cases and discussed the copyright implications of AI training. Now we’re seeing another major case arise as Disney and Universal have banded together to take on Midjourney. Midjourney is an AI developer that focuses on creating generative AI that produces images (and soon videos). Those images often include copyrighted works, which the Plaintiffs argue infringe on their intellectual property rights. Disney and Universal explain their core arguments in the complaint:

“Whether it is a children’s coloring book with Marvel superheroes, a video game based on the Shrek movies, or a subscription service that distributes high resolution images or short videos with Plaintiffs’ copyrighted characters, only Plaintiffs are allowed to build a business around or otherwise commercialize those characters. Midjourney’s Image Service was developed using innumerable unauthorized copies of Plaintiffs’ copyrighted works, and it operates by reproducing, publicly displaying, making available, and distributing additional infringing copies and derivatives of those works”

Copyright infringement can occur when copyrighted works are fed into an AI’s training data and when the AI outputs too closely mirror the copyrighted works they were trained on. In this case, the Plaintiffs appear to argue that Midjourney has infringed in both ways. Plaintiffs emphasize the presence of their copyrighted characters in Midjourney’s outputs and the commercial nature of Midjourney’s enterprise. Interestingly, the Plaintiffs do not plead a violation of the Digital Millennium Copyright Act (DMCA) like we see in The Intercept’s case against OpenAI. Instead, the Plaintiffs’ arguments focus on traditional primary and secondary copyright infringement under the Copyright Act.

While Disney and Universal are focused on holding Midjourney accountable for damages, the Complaint does raise the possibility that Midjourney could try to shift liability onto users:

“However, in the event that Midjourney argues that it is not the direct infringer of Plaintiffs’ Copyrighted Works, and that its own subscribers are somehow the direct infringers of the Copyrighted Works, then Plaintiffs plead, in the alternative, that Midjourney is nevertheless liable for secondary copyright infringement. “

Should Midjourney and other AI developers go down that road, we could see liability expand to consumers. In that case, it’s possible that employee AI use could expose companies (and possibly executives) to liability.