If I look at a photo of Prince and then using that image as reference create a new silkscreen painting is that fair use or infringement?
Because the US Supreme Court has ruled that instance I referenced was infringement as both images were used for magazine covers [0].
the existing copyright rulings are sufficient to determine this, and has nothing to do with ai models.
You've already pointed out a case - if you use an AI to generate an image which has sufficient likeness to an existing one, then the AI portion is irrelevant to the ruling. You could've made that same image in photoshop without AI, and should obtain the same ruling.
But in the above circumstance, the silkscreen used in the creation of the image does not itself infringe. And replace that silkscreen with AI model, nothing has changed.
so by that standard, why isnt photoshop a copyright infringement? You can use it to create a copy just the same.
no you wouldn't, but these diffusion models do way more than ffmpeg, and do qualitatively different things.
I am on the fence, but i lean towards the side where training an AI using existing works is not infringement, as long as the AI's output is (or can be) majority new works. For example, a poor training algorithm that merely repeats the training dataset (and cannot output new works) is infringing, while a different algorithm (such as the current stable diffusion one) that can output works that has never been made and is totally new, does not infringe - after all, style and ideas are not infringing and if the algorithm managed to extract those ideas from the training set, all the better.