Midjourney: A Step Forward in Tech or a Leap into Legal Trouble?

The AI generation model developed by Midjourney can automatically generate images based on text instructions input by users. However, many artists believe that the operation of Midjourney’s service relies heavily on a vast number of copyrighted artworks, without obtaining consent from the artists. In early 2023, several artists filed lawsuits against Midjourney and other AI image generation companies, alleging that these AI service providers infringed on their copyrights.

Who Might Midjourney Have Imitated?

On the first day of 2024, Jon Lam, storyboard artist at Riot Games, disclosed a conversation on the X platform, involving a group of Midjourney employees, including CEO David Holz, discussing how to generate a list of artists on Discord in 2022.

Credit: Jon Lam on X

In the thread, David Holz posted a Google Sheets document listing over 4000 artists, claiming that Midjourney can imitate the styles of many artists. Although this document is no longer directly accessible, it has appeared as evidence (Exhibit J) in public court documents.

The list of artists includes many well-known artists, both deceased and active, such as Vincent van Gogh, Pablo Picasso, Salvador Dali, Andy Warhol, Carl Barks (Scrooge McDuck), Boulet, Uderzo, Akira Toriyama (Dragon Ball), Walt Disney, Hayao Miyazaki (Spirited Away), and others. It also includes employees of renowned companies like Hasbro and Nintendo, and even a six-year-old child Hyan Tran, who provided artwork for the card game Magic the Gathering. It is currently unclear how Midjourney created this list. (Should artists not on the list feel relieved or upset?)

What Does the Creation of an Artist List Imply?

Simply compiling a list of names is unlikely to be illegal. However, how could Midjourney use prompts to generate these artists’ styles if it did not use their works to train its AI model? This could be indirect evidence of Midjourney’s unauthorized extensive use of these artists’ works. After the release of Midjourney V6 at the end of 2023, the generated images became even more refined and natural. Many users found that Midjourney could produce images nearly identical to movie scenes, raising doubts about whether it trained its model using copyrighted images.

Credit: Reid Southen on X

Notably, the provider of this comparison image, Reid Southen, is a concept artist who has worked on productions for Marvel, DC, and movies like Transformers and The Hunger Games. Southen’s account was suspended by Midjourney during his testing of image generation.

Credit: Reid Southen on X

Furthermore, Midjourney promptly added a clause to its terms and conditions, requiring users not to attempt to violate intellectual property rights. Many users see this as a move to prevent artists from gathering evidence and to shift the responsibility for copyright infringement onto the users themselves.

Credit: Reid Southen on X

However, creating non-infringing images seems challenging for users. (Even requests not to generate images of 3PO were not heeded.)

Credit: Franky Ballarani on X

Does the Use of Unauthorized Materials Constitute Copyright Infringement?

Even though evidence suggests that Midjourney did utilize these materials for training, it’s not definitive proof of copyright infringement. Copyright infringement judgments are more complex than one might think. For example, in October 2023, a California federal court dismissed several claims by artists:

  • The artists had not registered their copyrights (even though copyright automatically arises upon completion of a work, registration is necessary in the U.S. to file a copyright infringement lawsuit).
  • The initial complaint did not provide a complete comparison of the original works and AI-generated images, preventing the judge from finding substantial similarity. Given the vast amount of images used by the AI, it was doubtful that these particular artists’ works significantly impacted the entire model. (will the judge think differently if he seen the aforementioned Thanos and 3PO images?)

An Unintentional Error or Deliberate Action?

Current evidence suggests that Midjourney intentionally trained its AI to mimic specific artists’ styles without authorization. Jon Lam’s screenshot shows Midjourney’s senior software engineer Daniel Russell explicitly discussing “laundering” certain artists’ styles to avoid legal issues.

Credit: Jon Lam on X

Midjourney is still in trouble

It seems likely that the Midjourney team planned to use artists’ works without permission to train their AI. Regardless of copyright law, this certainly puts Midjourney in an unfavorable light ethically. Hugo Award winner Phil Foglio commented: “Though Defendants like to describe their AI image products in lofty terms, the reality is grubbier and nastier,” “AI image products are primarily valued as copyright-laundering devices, promising customers the benefits of art without the costs of artists.”

In contrast, OpenAI successfully signed a deal in December 2023 with German publisher Axel Springer to pay for the use of copyrighted articles. This seems to show more sincerity, even though OpenAI was also sued by The New York Times that month. Striking a fair licensing deal acceptable to both parties is not a trivial task.