A photo that tries to capture an existing painting as closely as possible is not copyrightable.
However, even minor changes (such as changing the tint of the photo) have been found to be enough for copyrightability.
However, even minor changes (such as changing the tint of the photo) have been found to be enough for copyrightability.
I don't think past-decisions are that important here. There'll definitely be new laws around AI generated content, that set clear standards. Those standards have to consider the social impact of copyright and the livelihood of artists. The whole point of copyright is not some abstract golden moral standard, but something that keeps artists and writers employed.
That's why I think pay-for-copyright is the best balance in terms of liberty for AI art but preserving the incomes of traditional artists.
The generative art is not set in fixed pixels, but instead is represented in a fuzzy form (equations, algorithms etc) that slightly varies each time you look at it. The value of it is also constrained by the author's intent and work. Only humans can be subject to copyright, so it at least makes common (if not legal) sense.
ML models are the same as the generative art that previously existed - they only add the captured essence of the prior data to the mix of human artistic intent and hard algorithms.