How so? This just looks similar to the Obama photo situation. You look at the original and then you look at the artist rendition and in both cases they line up pretty closely to the original. The transformative work being done by the AI is way more than this unless the artist intentionally is trying to preserve the original closely. In both these cases, the artist is making decisions to not be that transformative from the original.
Also, I can do this all day long if I am not selling my output.
I haven't really been following the AI stuff that closely, but in a similar conversation last week someone was noting that while a lot of the model creators said the original images aren't there, in some/many cases they actually are and if you ask correctly the exact (or close to it) image comes out the other end.
I don't know the details, or enough to have a real opinion on it, but it seems like if you have a system that you can request something from and an input image comes out mostly intact on the other end, that shares a lot of similarities to a database and lossy compression. If that's actually possibly, then I have questions about how much of an original is used in the output even if it's changed, and at what point it becomes transformative.
Again, I'm not sure about most of this, and don't even have the source comment I'm remember, much less their source for their assertions, but I do have lots of questions and suspicions, if indeed what we think we know about these models based on prior statements ends up being wrong in some cases as we learn more.
transformative doesn't refer to modifications done to the work of art.
Transformative refers to how the works of art are used. For example, if I make a compilation of every single Barry Bonds homeruns the clips of the games are copyrighted but the video I produced isn't a substitute for an actual baseball game so the resulting work is transformative even if none of the video footage has been altered.
But certainly the copyright holders would succeed in getting your video taken down from YouTube since it wouldn't be a DMCA request. (Fair Use doesn't mean a private company must host your video).
The point I'm trying to make is a point of clarification as you seem to have a misunderstanding of what transformative means w.r.t. Fair Use since your post [1] talks about comparing the differences between the source work and the AI work to determine transformative.
A derivative work is typically what the generative AI produces where you could see elements of an original work but there are changes (i.e. the source work but shaded purple).
A transformative work may be literally the source work but used in a different context/purpose (i.e. a 5s clip of a 2h soccer game used to show proper throw-in technique as opposed to the original purpose of a sports game).
In the big picture, I expect generative AI to replace stock imagery and in this area I think this court case throws a huge wrench into that. If you're licensing generative AI instead of licensing the source stock imagery this case is going to be cited as why what you've done is illegal.
I take issue with “generative ai produces where you see elements of an original work but there are changes”. Generative AI does not take the pixels of the original work and collage them together. You have go out of your way to tell something like SD to take the input picture and shade it purple. Generative AI isn’t even the right tool for the job as that’s better done in photoshop.
Because this case stands for the proposition that when you make a derivative work, you cannot use it in the same way the original was used, for the same purpose, and call it transformative. The transformative prong of the fair use analysis is one of the most crucial prongs (if not THE most).
Also, I can do this all day long if I am not selling my output.