Perhaps I’m misunderstanding your argument, but my counterexample would be: if a human digital artist transformed a Getty image, resulting a fantastical, never-before-seen result, using software like Photoshop, that use would be no more defensible. If anything, the vast scale at which this occurs in AI makes it worse.
I think your hypothetical would depend on the character & extent of the transformation. Mere filters that leave the original recognizable? Probably an infringement. But creative application of transformations to express new ideas? Maybe not – especially if the derivative is a comment/parody on the original, that actually increases interest in it. Most art is a conversation with the past, reusing recognizable motifs & often even exact elements.
For example:
Andy Warhol died in 1987, 35 years ago. One of his 'Prince' collages dating to the early 80s used another photographer's photo, without permission. In 2019, one federal judge ruled that was not infringement. An appeals judge then said it was.
The Supreme Court has decided to take the case.
The US Copyright Office & Department of Justice agree with the photographer in briefs filed with the court... but the mere fact the Supreme Court took the case indicates they think there might be issues with the appeals court ruling. They might agree with the original judge!
So, when all the (possible) disputes over AI-training-on-copyrighted-images resolve – maybe in the 2030s or 2040s? – what will the laws say, & courts decide? It'll depend a lot on other specifics, & reasoning, that may not be evident now.
I find legal disputes in fine art interesting, however—IANAL, of course—I understand that fine artists (Richard Prince comes to mind) are subject to very different copyright restrictions than graphic artists under commercial use.
It’s, as you said, up to courts to decide. But AI generated imagery is frequently commercial in nature (KFC, already). AI services are trained on unlicensed commercial stock images, and are able to reproduce enormous quantities of derivative images, and do so at a profit. I think that’s categorically different from a fine artist appropriating imagery in a single artwork or even series of artworks in an entirely different context.
