There are many things that are not copyrightable that are IP — brand names, logos, etc. are IP. Can I copyright “Kentucky Fried Chicken” — no, but is it essential (and valuable) IP? Yes. Are they “public domain”? No.
Once again, Epic doesn’t grant you “copyright” but a license to use — this is VERY important and is exactly what Midjourney indicates: you have the right of usage. What Epic CANNOT DO is assign you the rights to any asset — only the asset owner can do so (and it is actually more complex than that — which is why people get into trouble after the fact when they think they bought exclusive rights to an asset and did not).
2.2.d Use of unmodified public domain content is limited to assisting with presentation, while not being the majority of the submission,
The problem here is that it is NOT public domain — or I wouldn’t have to pay to license it from Midjourney for the right to use it.
If the images are not copyrightable, they are essentially public domain, aren’t they?
No. As per Midjourney’s license, I must pay-to-play, ergo it is not public domain.
It’s complex.
Yes. And we will have to see what the courts says when two people claim the same artwork as their own. Much like Epic’s license, Midjourney does not state you have an EXCLUSIVE right to the image. Merely that you are licensed to use it.
I know it’s terribly confusing, but that is the whole point of obtaining a license to use IP, IMHO.