When I was a kid, I liked to draw Marvel and Disney characters. It was how I first got interested in drawing and how I participated in those fictional worlds—a 10-year-old’s 1980s version of fan fiction. I made dozens of Wolverines and Donald Ducks, and neither Walt Disney nor Stan Lee ever sent lawyers around to knock the pencil out of my hand or rip the sketches off my grandma’s refrigerator. Apparently times have changed.
Disney and Comcast’s lawsuit against AI image generator Midjourney is the biggest power grab yet in Big Content’s century-long bid to monopolize the creative economy, this time extending to the tools people use to make art. Overstating their rights is a go-to move when these behemoths fear technological or cultural change. Back in March, Hollywood stars amplified a false narrative that AI developers were asking for changes and new exceptions to copyright law. Now, Disney claims that Midjourney is a “copyright free-rider.” In reality, AI companies are relying on a long-standing legal principle that Hollywood itself couldn’t exist without: fair use.
The fear that new technologies will harm creativity is not new. From the development of the phonograph in 1906 to cassette tapes in 1980, MP3 players in 1998, and YouTube in 2007, each new technology faces challenges over copyright concerns from established creative industries. And in each case, new technologies help more people make and enjoy more art in more ways than before. New creative practices and industries are born, while established ones evolve and find new ways to thrive. The motion picture and recording industries themselves are built on technologies that were condemned as a mechanical threat to human performers. Hollywood is in Los Angeles instead of West Orange, NJ, because independent filmmakers fled West to evade Thomas Edison’s patent cartel, which filed 289 legal complaints against Universal Pictures alone.
When upstarts become empires, they get a new perspective on change. Kim Harris, general counsel for NBCUniversal, said the companies filed suit “to protect the hard work of all the artists whose work entertains and inspires us and the significant investment we make in our content.” Let’s be clear: this lawsuit is not about protecting art or artists; it is about ensuring that Disney and other content conglomerates maintain their economic dominance. Thankfully, that’s not how copyright works. While Big Content has managed to tilt the system in its favor in many ways, the vital protection of fair use endures as a check on their market power.
Rooted in nearly 200 years of case law, fair use has protected unlicensed use of copyrighted materials in a wide variety of circumstances, allowing academics, creators, and entrepreneurs to use existing culture to make new creative, scholarly, and technological works for the public. By striking a balance between rightsholders and the public, fair use ensures that our copyright system “promotes the progress of science,” as the Constitution requires. American companies are the global leaders in both technology and creativity thanks in large part to fair use.
Strong legal precedent explains how fair use applies to emerging technologies like AI and to creativity itself, protecting “transformative” uses that serve a new and valuable purpose, enriching the culture. This precedent has provided protection for internet search algorithms, journalistic fact checks, YouTube reaction videos, and parody films like Spaceballs and shows like The Daily Show. The Supreme Court has called fair use a “First Amendment safety valve,” and like the First Amendment, fair use can be applied to new circumstances and new technologies despite its ancient pedigree; courts have already hinted that they will find AI training to be fair.
Like human creators, AI systems learn from existing works and use the unprotected facts, ideas, and patterns found in those works as the basis for creating new works. Similar computational uses have been protected by fair use precedent for decades. Disney points to Midjourney’s ability to create images featuring its copyrighted characters as proof that it goes beyond the public domain in its outputs, but fair use protects the public’s right to reuse pop culture in new contexts. Any general purpose creative tool can be used to make copies; never before has the law required the makers of creative tools to enforce content-based restrictions on new creations. Fair use exists to protect the next generation of creators from this kind of prior restraint on speech.