San Francisco-based artificial intelligence company Midjourney has come out swinging against a copyright infringement lawsuit filed by entertainment giants Disney and Universal in June.

In a 43-page response filed yesterday in U.S. District Court, Central District of California, attorneys for Midjourney stated that not only is the company operating within allowed fair use parameters, but that the plaintiff companies themselves use and profit from their “use of Midjourney and other generative A.I. tools.” They even quote Disney CEO Bob Iger as having recently stated, during a discussion about the company’s use of A.I.: “ ‘technology is an invaluable tool for artists,’ and generative A.I. is no different.” The plaintiffs, Midjourney said, “cannot have it both ways.”

In their original filing, the plaintiffs took issue with Midjourney generating artworks that infringe on Disney and Universal properties, such as Star Wars, Marvel, and Simpsons characters. They claimed the service “functions as a virtual vending machine, generating endless unauthorized copies of Disney’s and Universal’s copyrighted works.”

Side-by-side comparison in the complaint showing copyrighted Bart Simpsons character and Midjourney’s output. Photo: Disney and NBCUniversal v. Midjourney complaint.

Midjourney, in response, said the plaintiffs have taken aim at it in two allegedly unfair ways. First is the allegation that the process of training an A.I. model on billions of images violates their rights “even though only a small fraction of those images may contain individual frames from Plaintiffs’ films and shows.” Second, Midjourney pointed out that the plaintiffs complain it has created and displayed images that incorporate characters from popular film and television series that are infringing, and that Midjourney is liable for their creation.

The platform said that such a “framing is premised on mischaracterizations of how Midjourney works and its role in the creative process.” Its attorneys likened the training A.I. models to how humans learn to draw or paint, “not by memorizing individual artworks, but by internalizing patterns and techniques through repeated exposure and practice.” While its users are indeed required by its terms of service to refrain from infringing on the intellectual property rights of others, the response noted, “Midjourney does not presuppose and cannot know whether any particular image is infringing absent notice from a copyright owner and information regarding how the image is used.”

The company also seemed to assert that responsibility to police infringement falls on the entertainment giants themselves. For instance: “Plaintiffs could have—and should have—followed Midjourney’s Digital Millennium Copyright Act notice and takedown procedure, codified in its Terms of Service, by identifying the specific images they believe are infringing and providing the URLs where they are displayed.”

While there are any number of legitimate, non-infringing grounds to create images incorporating characters from popular culture, said Midjourney, “Plaintiffs seek to stifle them all… [They] made sweeping allegations about Midjourney writ large, commenced this litigation, and are pursuing a path that chills lawful expression.”

Midjourney’s community gallery screen. Photo: Shutterstock.

Neither Disney nor Universal immediately responded to requests for comment. Attorneys for Midjourney did not immediately comment beyond what is contained in the filing.

At the time of the lawsuit filing, Horacio Gutierrez, senior executive vice president and chief legal and compliance officer of the Walt Disney Company, emphasized in a statement that the company’s “world-class IP” has been built on “copyright law that give creators the exclusive right to profit from their works.” He added: “We are bullish on the promise of A.I. technology and optimistic about how it can be used responsibly as a tool to further human creativity.”

Midjourney is asking the court to dismiss the case. As part of several “affirmative defenses” in response to Disney and Universal’s claims, the attorneys stated, the claims are barred, in whole or in part, by “the doctrine of unclean hands. Plaintiffs use and benefit from generative A.I. models, including Midjourney, and including in connection with some or all of the asserted works.”