Disney’s Midjourney Lawsuit: Can Copyright Contain AI?

0:00 Okay. From our studios in Los Angeles and Tampa. This is green tagt Theme Park in thirty. I'm Philip and I'm joined as always by my co host Scott Swinson of Scott Swinson Creative Development. On Green Tag, we break down the week's top news in theme parks and explain why it matters to professionals. And this week we're gonna be talking about how Disney is the first to join with other companies in the suit against AI, the first like massive AI suit. It's very exciting. Yes, yes, well it's I mean, it's exciting, it's inevitable, and you know, these are these are the kinds of things that that have to be sorted through because again I don't I don't think. I don't think either of us are going to say we're gonna be AI bashing here too much. But the idea is we have to set these ground rules. We have to figure out where the where the lines are and where the marks are.

0:50 Oh speak for yourself. I'm I'm okay. I brought my AI bashing toolkit, Phi Phillips going to AI bash and I'm going to keep moving forward in the world. So fine, fine, okay, Scot Okay, so. The gloves are off, we've already started. Okay, this this sounds like more like an unhinged actually, but anyway, all right, yeah, so go ahead, Phlip, you can set the tone for this thing. I will set the tone. I'm going to read excerpts here from the NPR article. It says, in a first of its kind lawsuit, entertainment companies Disney and Universal are suing AI firm mid Journey for copyright infringement. The one hundred and ten page lawsuit, followed Wednesday in the US District Court in Los Angeles includes detailed appendances illustrating the plaintiffs' claims with visual examples and alleges that mid Journey stole countless copyright works to train its AI engine in the creation of age generated images. Many companies have gone after AI firms or copyright infringement, such as New York Times, Sony Music Group, and et cetera, et cetera. This is the first time major Hollywood players have joined the fight against the AI landscape.

1:54 So that's that's the gist of it. I read in a different article that they're the damages are seeking is one hundred and fifty thousand dollars per infringement, and so that would be you know, billions and billions and billions. So my hot take and then I'm going to get. I'll let Scott give the more nuanced take, probably my take here. First disclosure, neither Scott nor I are attorneys. We do not practice law in any states whatever. We're not financial advisors either, So take all those things as disclosures. However, I don't see any way in which this is not infringement, Like it's clear copyright infringement, Like you look at the examples and you can look at how you can create an exact copy in mid journey of Mickey and I have been saying this since the AI started with this.

2:45 It is clear cop right infringement. It's clearly taking content. But at the same time, the genies out of the bottle, like the horse has left the stable, like it's gone. I don't think that there is realistically a way to go back, because we've kind of we've let this loose and we've let it happen. And I think that the move by these companies is going to be to continue to appeal and to drag it out in court in hopes that they can just delay these because I mean, I mean, depending on what the what the amount esileians it being. I mean, some of these companies are large enough that they could pay the fines and still be fine. I mean, even if it's ten billion, anthropic and open AI would be able to handle that. So but I think these types of suits are absolutely essential because we need ground rules for how AI is going to operate, and they have ground rules in other countries. It's really just America where it's it's the it's the wild West here.

3:41 So I understand the technical, the technological argument from folks where if you put any sort of guardrails around it, it's going to inhibit the expansion of AI, which is going to put us behind other countries. But I would push back against that in that. You know, again, we generally try to put guardrails around things that are just that are relatively unsafe or lead at theft, whatever. But in a way though, I do kind of think it's it's kind of gone beyond. I think now it's really just us trying to come up with rules as to how you're going to monetize it. Right, if you are using Mickey's image to create something on your own then, Mont, I think that's what we're gonna have to come at it from the from the from the I guess, to the back end, or from a different angle where basically you're gonna have to look at it at the end.

4:24 Use case, if you have a theme park that is using mid journey, you know, to create something they are monetizing, I think that's when you're going to have to come out. I don't think you're gonna be able to stop anything. You're just kind to come at it from attacking, from going at it where people are making money down down long stream. So if people are selling merchandise that is, you know whatever. I think that's what we're gonna have to come at it. I think it's there's no way to stop it now anyway. Okay, Scott, Well, so first of all, again I want to stress something that Philip just said. Neither of us are lawyers. But in the in the little bit that I've read about this suit, it says that they are going after them for utilizing copywritten imaging imagery to train the AI. Correct Yeah, train the AI. So they're not going after the fact that they are duplicating copywritten imagery.

5:15 What they are going after is the fact that they're using copywritten imagery to train the AI is that the way you understand it, because you've you've doubbled into this much more than I have. Yeah, the way I understand it is that that's what they're saying they're using to train it, and their proof that. The way they're proving this is by saying that you can go into mid journey and ask it for prompts and it will create exact replicas basically, So that's the way they're proving it is. They're proving it by saying you're doing this, And I guess my point is they're definitely gonna win, but it's not gonna do anything, or maybe they're not, But you know what I mean, It's like, what's the point They've already trained it? But I guess I guess my point is, are we talking about using copywritten images as inspiration or are we use it talking about replicating copywritten images, because replicating copywritten images, yes, is copyright infringement. However, there's an entire market out there of things called fan art. People in when they go into educational services, when they go into universities, they are utilizing copywritten images all the time. I know fifteen people who I can get I can get on speed dial that can give you a that can sit down and draw, freehand from memory a perfect image of Mickey Mouse, simply because they've been inspired by Mickey Mouse. So I guess that's where I think this is a slippery slope. You know, and don't misunderstand me. I am not saying that you should be able to use AI to create an image that is identical to something that is copywritten.

6:45 You know. There's it goes back to the basics that I always understood. It's like, you know, what is it sixty percent difference something like that, so that it becomes something new, It becomes an original work of parity. Well, not necessarily. Parody does not have to be sixty percent. Parody can be less as long as it is judged a parody. However, if you are inspired by something, you know, I can't all of a sudden take Mickey Mouse, draw him exactly the same way, only change the shape of his tail, call him, you know, Ricky rat and get away with it. No, because it's not a sixty percent difference. But what the lawsuit what I'm looking at with the lawsuit is that they are going after them for using images to train their AI. Yeah, that's where I have That's where I raise question. And again I am neither a lawyer nor am I an expert on AI, so I can't I can't really come at this with a strong arsenal of reasons for it. But if they're training AI, how is that any different from you, Philip, going to animation school and studying case studies of you know, Mickey Mouse, Frozen whatever.

7:53 You're being inspired by those things. You are being in essence trained by existing imagery. Help me understand how that's different. Yeah, I think that this is. I mean, that's probably why it's a suit. Is it's going to have to That's what I mean when we say we're gonna have to have ground rules, right, because I think that what you're basically saying is humans get educated, and part of that education is learning from previous masters in any art form. Correct. And even you know, when I did writing, you know, like I you know, I think every writer has phases where you're kind of writing like other people and then and then you find your own voice, correct, I think, And I think like that's the key is the human creating its own voice. And I think that's kind of what again for humans, that's what that's how you know, when when you make your own voice, you know, like I think it's like it's fine to study other people's work, right, and then when you make your own voice and that's what you put out there, and then that's that's yours, it's it's your creation.

8:58 Right. So I think, though, where we need to set the ground rules is exactly in this debate, where's the line? Because AI is not a human and in this case, you are quite literally downloading material that you don't have rights to and giving it into a thing that then you are selling. So like that's the key here is that they're selling mid Journey and they're selling basically the ability to copy precisely somebody else's work. The ability to But like I said, that ability exists right now. I have, like I said, fifteen people in my phone bank who could draw Mickey Mouse. They could duplicate it to the nth degree, and that would be illegal because they duplicated to the nth degree. But that's not what the lawsuit is saying. The lawsuit is about training the AI and the reason these people can do This is because they have been trained by looking at the copy written material over and over and over again.

9:54 And you yourself, you know, you, yourself, Philip have told me that AI only gives you what you ask for, so you know, it does it quickly. It helps you find the stuff that you need. But if you, as the human being, as the human operator, don't input the right thing, it ain't gonna find it for you. So you know, you say it's not human, which is true. It is not. It is not sentient, at least not yet. We'll see. I've seen, you know, the horror films or the sci fi films. But you know, when with a lawsuit where it says and again, let me finish my point first, when the lawsuit says you are using copywritten information and copywritten imagery and copywritten data basically to train your AI. That's no different than going to university and doing case studies. Yeah. The difference is it does it quicker and it can retain it longer. And that's why we have to find these these What these guardrails are?

10:56 You know you mentioned that there were guardrails in other countries. What are those guardrails? Do you know? I don't know Yeah, so I think this is this is exactly. It's a little bit like both of us are not attorneys, but we're trying to argue this thing. So I think we've already but what. We're doing is we're arguing it based on our on our understanding, on our current understanding of what the question is, what the lawsuit is, and what the actual power of AI is. Yeah, and I think all this I think to bring it back to before I answer your question directly, I just wanted to set the context. Like, I think the reason we're talking about this on the show is because these are the types of like I think stickiness that you were going to get into all of us are, especially if theme park operators, script writers, all this kind of stuff, because we're all have access to these tools, right, And we've talked about previously how Disney already got into some hot water for putting that AI artwork. I mean it's out in public view, right, not just using it for mockups and putting it out into a finished attraction.

11:51 And so I think that's why we're talking about this, is that it does get sticky because you can I mean, you really can just go into Majory and say, Mickey Mouse smoking a cigarett at you know whatever, and it gives you the exact copy of Mickey swoggy, I mean, does it. To Scott's point, it's up to the human to put in. But but to their point, they're like, well, it's allowing people to spit out exact copyright infringement things. And you're like, well, but then that's I think my point is there's no way to catch I think my point is it's done with, it's already. This is probably gonna settle or it's going to be dragged through courts or whatever, because there's no way to undo it. Right, So, like my point would be just relying on the downstream thing, like you know, make sure that humans are not making and monetizing corporate and material. That's going to be my thing because that we can control. You can go to a store and you can take down you know whatever, if it's an exact coprate in fresher, that's going to be That's why.

12:44 I But but to your point about the privacy, So this has been a big sticking point in the tech community because you know, there's data privacy protection laws in other countries that we don't have and I think Europe is probably the strongest. That the UK and you're in the EU have data privacy protections, and a lot of that data data privacy protections does relate to AI and especially like using material from children, right, like like children their data and their images and all that to I mean that a lot of that is protected, so it's not allowed to be used and input into this. And I think. A lot of the tech companies are like, well, that is inhibiting our ability because it's whatever and and but you.

13:30 Know, the the. Their laws there, they also have stronger protections on what data is allowed to be used. And basically their argument is like, you know, we age gate tobacco, we age get alcohol, we age get all this. So we're not going to allow like children's data to be used for anything, for any of this stuff, and we're going to prohibit what's going to be allowed to be sold to them and their access to certain uh social media materials because we've deemed it to be dangerous. We're talking about danger versus copyright. First off, yeah, so you're you're giving two different examples. First off. Secondly, you know, I want to say right up front, I am not at all in favor of companies being able to utilize copywritten material as their own to generate revenue. That is not that, but that's the end user. That's the end result. Ye, and your example of Mickey smoking a cigarette, Yes, you can get an AI to do that. Or I could call up the fifteen people on my speed dial and say, hey, could you drive me a picture of Mickey mouse string is smoking a cigarette. Both of them are wrong. It's not the training. But I will tell you from my perspective, and I'm guessing here again not a lawyer, I'm guessing that the reason they're going after training versus end is because if they can stop it further upstream, if they can put the the the kibosh on it further upstream, they don't have to go after every single individual element that has been utilized illegally, illegally even by our current laws.

15:01 If I put something out there that is copywritten, whether it was AI generated or not, then it's still illegal, but it's much easier to go after and more economical to go after the you can't use it to train. But just a quick point to add context. You are completely right, and just add context on that. There are some models that stop it at that point. Actually, so there are some models that when the user says, you know, give me Mickey smoke a cigarette, it will actually reply to you and be like, I can't do that because you know, this is a copyrighted material and I can't do that. And so I can give you a parody, or you can give me, I can give you something that is similar, you know, but able. Actually the model actually push back. And actually I experienced this when I was trying to make thumbnails for our show for Green Tag or I you know, when I'm like, give me, you know, the this is the show. It's about this thing with comcasts, and give me the comcast, you know, the comcast you know, Earth with whatever, and you know, and it will reply back, we can't do that because that's copyrighted image. But we can do a generic ball of the earth and then you you know, and do these things. So I think so there is precedent for like for its stopping the user from being able to generate a coprighting thing.

16:19 So just that adding that context, and. I think and I think that's important, and I think that you know, if if there are certain AI generation programs that do that, kudos to them. I think that's great, but I just think it is the part. I think part of the reason that this is so slippery and such a quagmire is because the only thing, I mean, the only difference between being able to generate a mickey smoking a cigarette is speed. Yeah. You know, there are artists who have studied copywritten material their entire careers, and because of that, they can sit down and create it and create something that is copyright infringement.

17:01 With AI they can do exactly the same thing, only in a fraction of a second. Yeah, and anyone. It opens up the accessibility to a much wider audience. You don't have to hire the artist to do. It, which makes it really, really difficult for them to track down every single solitary infringement of said copyright. Yeah. So you know, I I know it sounded like Philip and I were arguing. Really not in the end result. The end result is we don't want copywritten material. As a writer, I don't want somebody to say, uh, generate a show in the style of Scott Swinson. You know nothing that we have a whole lot to go on. I don't know, I don't think, but you know, and take take money away from me. I don't want that to happen. I get that, But I think it is a very tricky topic because this is this is something you know. It kind of goes back to a session that that I attended somewhere where was I oh riad where they said, you know AI AI is here. AI is not going to replace artists. It's going to replace artists that aren't afraid, that are too afraid to use it.

18:10 So I think that we have to think about this in shades of gray as opposed to its right or it's wrong. I think we have to look at this in how is this stuff being used? And again, mandating morality is really tricky. I understand that, but it's something that we're going to have to find out where where those boundaries are, where those guardrails are legally, where that all stands. But I think it is I think it is going to be difficult to prove that it is wrong to not train a brain, whether it is an AI brain or a human brain, by using copywritten material.

18:51 I think that is where we're going to write into some trickiness. And if I were a lawyer and if I were trying to defend the AI companies. That's where I would go, and we need to find a way around that or to disprove that in some way, shape or form, or we're going to come up with situations where, for example, I do a lot of presentations at trade shows around the world. I would no longer be able to do case studies because in a case study we are using copywritten material to educate. Well, we have a few other stories still we got to get to or at least talk about in some fashion.

19:33 They're all Disney related. We've tried to put this all together. So there was. A news announcement that came out from Disney this week. Of course, this ip you know lawsuit was in the mainstream, but in our theme park world, they're Disney released out study. It says the highlight here is that the old Disney World and Disneyland theme parks are worth nearly sixty seven billion a year to the US economy and support more than for hundred thousand jobs a constant country, according to a newly released study. Several outlets picked this up and it's from what I heard, you know that Disney's done this before, and of course we had the themed index and blah blah, you know, but really what for the first time, they're trying to combine it and show like a nationwide view, and then they also break it down according to the impact for the California and Orlando regions.

20:25 And what I was trying to figure out is like why, I mean, like what I mean, I feel like everybody, for the most I think, yeah, I think most people if you just ask them, like do you think Disney is a big employer that has big impact, I think most people would say yeah, probably, and especially the people in the communities, especially in in for Walt Disney World. I mean that's like, you know, everyone knows someone who's worked or has worked at Disney or. I mean, it's like it's a huge part. So I I'm not sure if like is this them trying to. Maybe store up political capital, you know, like where they're trying to like get this ready so they can go and have some sort of tool, you know, in the toolkit and in case there's a political backlash for something like or you know, DeSantis comes back and says we're trying to slow down this expansion or this or the whatever, and they can say, well, we can prove here that we impact I don't know.

21:28 What do you think, Scott Well Between I think I think you're absolutely right when you think that this is politically motivated. And again I don't know, I don't know they or not, but it appears as though that well, first off, in the United States, there are two key locations are in the crosshairs or in the they're in the focus, let's put it this way, of the current administration. So whether it is whether it is dysantis here in Florida or whether it is keeping that laser focus on California, because again it could be a huge threat to the current administration for the United States. I think Disney is just basically saying you probably don't want to mess with us, because we make a big impact financially, we are, we are as big a player as some of the you know, other billionaires or billionaire based companies that are that could potentially from a political standpoint, attack US. Yeah, and I think there, yes, it is a bit of a muscle flex, Absolutely a bit of a muscle flex. I also think that with the new Abu Dhabi announcement, they are also trying to probably to a certain extent, counteract some of the negative responses in the US to to doing a park in Abu Dhabi, and we've had great deals of the discussion about that. We're not going to go into that, but I think they may be coming back to say a little bit of guys, we're really important here too,

22:59 you know. And I also think and maybe it's I don't know, maybe it's just because I'm in Florida, but I also think it is a way to remind people that, you know, epic epic may be all of the headlines right now, but we're Disney. We're still here, we still have power, we're still viable, We're still making a great contribution because I will I will tell you you know, Orlando. Orlando was a nothing town prior to Disney. And it's not just the it's not just the revenue. It's the indirect revenue, the indirect profit that Disney generates between travel, hotels, restaurants, what what i'll call international drive attractions. You know, if it if it weren't for the big theme parks, so much of that, so much of those jobs wouldn't be there.

23:56 Yeah, they did actually break it down to your point. So forty point three billion for Florida is what they're is what they're claiming. And then they said Disney's operations in Florida created or supported two hundred and sixty three thousand jobs, like two hundred and six that that's I mean, it's a lot of jobs in Florida. It's a lot of jobs in Florida. And I will, I will even go so far as to say they're not all in orlandoa Tampa has a call center. Tampa has a Disney call center. So and we're you know, anywhere from an hour and a half to four hours from Orlando, depending on what I four is doing. Uh, but you know, so, Yeah, it's I think it's partially a muscle flex. I think it's partially a reminder that, you know, we do contribute a great deal to the US economy. I think you're right, Philip. I think it is a potential political hedge hedge. Yeah, and it's I won't even call it a warning shot. I think it's I think it's if we're going to talk about let's let's say this this becomes a political war, or it's doing it's doing military exercises in a visible location that's like really remote kind of a thing. Yeah, it's kind of like saying, hey, guys, you know we still have and we still contribute to a great deal of the US economy. Don't come for us because they're also I wouldn't be surprised if this was followed up with another report later that goes global and says here's where we

25:27 are the rest of the world, so that if the United States for some reason wants to turn on Disney, then they can say, great, let's have the largest new condo community here in Orlando, and we'll pull out and we'll go to Europe. Yeah, you know, it's it's it's a flex. I mean, it appears to me as it's a muscle flex. The quote by Josh Tomorrow is is pretty I would say, yeah, it makes sense if you think about it as a flex, because his quote is very stern. I mean, he says in the release it says, Disney defines the theme entertainment business in America, and our presence is felt across the country.

26:12 Our destinations create economies far beyond the gates of our parks and we and when we invest in the groundbreaking experiences that only Disney can deliver, growth follows. That is like great back forward. Yeah, and also it's you know, Disney's usually pretty good about being a little bit more middle of the road, you know, acknowledging universal blah blah blah, our partner of partners. You know, they always use this kind of like where, but this is kind of like only Disney can deliver this and where we we define it. And I'm like, I mean, it's so. What I'm wondering is if there hasn't been either some leakage that there is going to be some direct attack on Disney, or whether there already has been but it just hasn't been made public yet. So Disney decided to get ahead of it. I don't know, I don't know, I believe that.

27:02 Yeah, well, speaking of things that were not that are happening in the shadows. So there was a story. Too that came out around this time from Hollywood Reporter that basically is talking about how Hollywood's modern game of Thrones is that across all across the entertainment industry there are pitched power struggles quietly being waged for the top gigs at CIA, Sony Lucasfilm on the course, Disney and of course, because you know, Eiger needs to find his replacement. And remember this whole how it worked last time. A lot of people said that he chose, but then he sabotaged and his whole power struggle. And I guess there was a retreat recently with the Disney executives and there are some leaked comments from that retreat who are basically he is like, you have to be vicious in order to be able to be in this role effectively.

27:54 Is what I gather from the leaked excerpts. Is him just talking about how you have to really have to be vicious about it. And so I don't think that this economic impact. I don't think it really ties into that. But I do think that there are clearly we don't have a successor yet, and his time is running out, and so we like kind of like, come on, yeah. Well, and if they are tied together in any way, I think it kind of reinforces what we're saying. Anyway, this is really probably the first time in Disney's history where there's really been opposition. You know, Yep, that's true, that's true. Yeah, So it's going to be somebody who's strong enough to fight back against the opposition.

28:35 Yeah, maybe that's what he was. It can't be the same, It can't be the same. You know, everybody loves us. We're gonna be good. And to be fair, there are people who have said Disney has always been cut through throat. There are people who have said, you know, you think it's the happiest place on earth, that's only for the guests. Now, I also know many, many, many people who work for Disney who would say that is not at all the case. They love it, They drank, who laid, They thoroughly support their company, and I think that's wonderful. I think both are true. As being a former cast member, I would say both are true. Yeah, yeah, but I think it's but I think it's important to recognize that these two could be conceivably tied together because it's not the It's not that everybody's gonna love Disney anymore. And that's the way it has been for years, especially the theme park. You know, once Disneyland opened, it became the place everybody wanted to go. And we were reminded, you know, when it first opened, we were reminded that every Saturday night when World of Color came on television. Those of you who are too young to remember that, you won't even know it. But but we were reminded over and over again. We were reminded every time we went to a Disney film, we were reminded every time we picked up a Disney coloring book that Disneyland was the place to go. And then while Disney World opened, which was like, oh, it's not just a land now, it's a world. And I remember, and I remember that. I mean, I'm old enough that I remember that.

29:59 But now there is pushback. So yeah, you gotta have somebody. You've got to have a successor who is strong enough, smart enough and perhaps I don't want to use the term vicious, but willing, willing to scrap when necessary, and maybe that's maybe that's what they're saying. I again, I agree. I wasn't there. I wasn't there. Well, this has been our our, our Disney Hey, what are they doing right? And what are they doing that we don't understand? And this entire show is generated by AI. No, that's not true, that's not true. This is any imagine. This is really us and we're really out of time.

30:40 We're really out of time. Once again, guys, thank you so very much for watching. Uh if you watching or listening, if you would like to join our Unhinged Team, please do so we get even spicier than we do here on the show. And uh so you can just you can just search us and you'll find us. And so, since we're out of time on behalf of Philip and myself, this is green tagged theme Park in thirty and we'll see you next week.