“Midjourney is the quintessential copyright free-rider and a bottomless pit of plagiarism.”
Well, there it is. If you had been wondering whether and when the major studios would file a copyright infringement suit against a developer of generative AI (GAI), it finally happened on June 11. Disney and its subsidiaries, along with Universal Studios, filed a complaint against developer Midjourney alleging copyright infringement of many of the studios’ most famous and valuable intellectual properties. In the broader AI saga, the lawsuit is a big deal, though what it means for creators in general is hard to say. The studios imply that their complaint is a slam dunk, and it probably is. As the brief states:
This case is not a “close call” under well-settled copyright law. Midjourney set up a lucrative commercial service by making countless, unauthorized copies of Plaintiffs’ copyrighted works, and now sells subscriptions to consumers so that they can view and download copies and derivatives of Plaintiffs’ valuable copyrighted characters. That is textbook copyright infringement.
The 110-page complaint hardly expounds upon legal arguments and, instead, presents substantial evidence that Midjourney willfully violates the reproduction, derivative works, public display, and public distribution rights of the plaintiffs. Both as a matter of input (model training) and output of prompted materials, the studios compellingly show that their highly valuable works went into the system and that those same works come out of the system with simple prompting by users. Outputs also include expressive details like lighting and production design copied from the motion picture environments associated with famous characters.
For example, the user doesn’t just produce Darth Vader but can obtain a rendering of Vader on a Star Wars ship with lighting and production values that result in a highly detailed unlicensed derivative. The studios also allege that Midjourney itself publicly displays these outputs as a means of promoting its product’s capabilities. And finally, the studios anticipate that Midjourney will claim not to be the direct infringer and, therefore, allege that the developer is liable for secondary copyright infringement by facilitating mass infringement among its customers.
Aaron Moss, on his blog Copyright Lately, contends this case stands out among the roughly 40 active lawsuits against AI developers because the studios present so much compelling visual evidence of mass copying of protected works. While other GAI cases like Suno, Udio, and NY Times also present substantial evidence of infringing outputs, I think Moss is right that in the visual arts cases, plaintiffs rely more on the assumed infringement by means of model training more than they show obviously infringing outputs. In Disney et al., any ordinary observer can see that the characters and worlds produced are precise copies of iconic IP belonging to the studios.
Personally, I don’t see how Midjourney defends itself and, therefore, assume this case will be settled rather than fully litigated. Whatever comes of that settlement, motion picture studios generally have an interest in the development of GAI, which raises questions about independent creators and workers in the industry, as well as the future of filmmaking itself.
GAI and the Future of Filmmaking
Historically, the independent creator and the “line worker” in the industry both benefit from copyright enforcement actions of the institutional creator. For instance, when the studios go after pirate sites, the indie filmmaker benefits from a legal action she cannot afford to take, and the many crew professionals have their livelihoods protected. But with GAI, not only are the studios not seeking to shut down the developers, but they are presumably interested in the prospect of using the technology to produce motion pictures with fewer workers. This longstanding ambition of various film executives may not be attainable, but many professionals are certain that it will be attempted.
In conversations with friends in the industry, opinions vary, including those who find that GAI tools present intriguing opportunities for independent creators to produce new kinds of work at lower cost and greater speed. But at the same time, anxieties are high that GAI will mean job loss in every department of a typical production, including writers, directors, and actors.
There is no question that many motion picture jobs are threatened by GAI, but concerns that the future of filmmaking will be reduced to a few executives overseeing a roomful of programmers may be unwarranted. While GAI motion visuals are impressive and improving rapidly, it is also a shiny new toy that forecasts various cultural, financial, legal, and technological questions yet to be answered. And that’s just for film production.
My long-held view is that it was Star Wars (1977) that short-circuited the era known as the American New Wave in cinema because suddenly the prospect of the mega-franchise was much bigger than the movie itself. The end of the studio contract system resulted in greater creative independence, and a group of young directors, including George Lucas, produced what many consider a brief golden age of American motion pictures that were simultaneously box office hits, critical successes, and award winners.
When Star Wars demonstrated the potential of the film as franchise, the concurrent influx of MBA types into Hollywood amplified a new tension between film as art and film as product—i.e., the tension between filmmaker and film executive. Within that tug-o-war, it is only natural for the “suits” to want to produce as much product as they can with as little labor as possible—let alone expensive labor with opinions! Now, GAI theoretically presents that opportunity, though maybe not to the extent that many seem to either pessimistically or optimistically assume.
Usually, when the “suits” overreach with their analytics and try to predict what the market wants, the results are unimpressive. A theme I have repeated on this blog many times is that audiences want works that surprise them, not works that have been analyzed to death—and to produce fresh work takes artists, not algorithms. This rule, if it is a rule, implies a boundary that rejects the most stark predictions that major motion pictures will soon be made by three guys and a computer.
Potential Limits of GAI in Motion Pictures
Clearly, GAI output will continue to improve, and subtle renderings of naturalism will be attainable, which does imply that a whole motion picture with “human” characters can be produced without a camera or actor being involved. That this describes the future of all cinema seems unlikely, though it is notable that among the evidence presented in Disney et al., only one image is a depiction of a natural person (Mark Hamill as Skywalker), while every other infringing image is either a masked character or was originally made with pen and ink or computer illustration. Thus, the GAI’s ability to render these particular derivative works implies precisely the franchise material that could be produced without anyone building a set or rigging lights or pointing a camera at an actor. Still, there are limits.
For instance, the current Marvel franchise was primed with the first Iron Man (2008), the success of which owes a LOT to the performance by Robert Downey, Jr. This implies a caveat that films made without human artists can become what we might soon call the slop-flops of this dawning GAI era. Still, without a crystal ball or room to explore all the implications of eliminating one type of creative professional or another, a limiting factor for overuse of GAI may be copyright itself.
Because the human authorship requirement is, and will likely remain, a bedrock principle of copyright protection, GAI enables the production of a very large volume of unprotectable expression. Additionally, if two creators are using the same product, the likelihood of substantially similar, but independently created,[1] works may increase as well. In this light, creators, large and small, might want to be wary of overreliance on producing GAI material that may lack copyright protection. This concern would apply with greater force to newer characters, interpretations, and/or imagined worlds, if authorship in these works could be challenged on the basis that the expressions are the result of machine interpretation of the idea rather than human artists expressing the idea.
Personally, I would love to see the GAI genie stuffed back into its bottle because I believe that on balance the technology produces more social harms than benefits—and because the Techbros have zero credibility when it comes to ethical development or application of any of their products. But knowing that genie’s bottle has been shattered, I recognize how the technology can be used as a tool for new creative expression and am hopeful that lawsuits like this one at least push the application of GAI in that direction.
[1] Works that are independently created are, by definition, non-infringing even if they are substantial similar to other works.
