The point is to prove that copyrighted material has been used as training data. As a reference.

If a human being gets asked to draw the joker, gets a still from the film, then copies it to the best of their ability. They can't sell that image. Technically speaking they've broken the law already by making a copy. Lots of fan art is illegal, it's just not worth going after (unless you're Disney or Nintendo).

As a subscription service that's what AI is doing. Selling the output.

Held to the same standards as a human artist, this is illegal.

If AI is allowed to copy art under copyright, there's no reason a human shouldn't be allowed to do the same thing.

Proving the reference is all important.

If an AI or human only ever saw public domain artwork and was asked to draw the joker, they might come up with a similar character. But it would be their own creation. There are copyright cases that hinge on proving the reference material. (See Blurred Lines by Robin Thick)

The New York Times is proving that AI is referencing an image under copyright because it comes out precisely the same. There are no significant changes at all.

In fact even if you come up with a character with no references. If it's identical to a pre-existing character the first creator gets to hold copyright on it.

This is undefendable.

Even if that AI is a black box we can't see inside. That black box is definitely breaking the law. There's just a different way of proving it when the black box is a brain and when the black box is an AI.

The crux is that they went "draw me a cartoon mouse" and Midjourney went "here is Disney's Mickey Mouse™". A simple prompt should not be able to generate that specific of an image. If you want something specific, you should need to specific it, otherwise the AI failed to generalize or is somehow heavily biased towards existing images.

Or you do? The point is that these machines are just regurgitating the copyrighted data they are fed, and not actually doing all that transformative work their creators claim in order to legally defend feeding them work they dont have the rights to.

Its recreating the images it was fed. Not completing the prompt in unique and distinct ways. Just taking a thing it ate and plopping it into your hands.

It doesnt matter that you asked it to do that, because the whole point was that it "isnt supposed to" do that in order for them to have the legal protection of feeding it artwork they didnt pay the rights to.

I'm pretty pro AI but I think their point was that the generated images were near identical to existing images. For example, they generate one from Dune that even has whisps of hair in the same place.

It just proves that there is not actual intelligence going on with this AI. It's basically just a glorified search engine that claims the work of others as it's own. It wouldn't be as much of a problem if it attributed it's sources, but they can't do that because that opens them up to copyright infringement lawsuits. It's still copyright infringement, just combined with plagiarism. But it's claimed to be a creation of "AI" to muddy the waters enough to delay the inevitable avalanche of copyright lawsuits long enough to siphon as much investment dollars as possible before the whole thing comes crashing down.