Stolen art requires the original to be taken from its rightful owner. The original owner still has their work, meaning no theft has occurred. Also worth a mention is that in the case of AI art the original owner is hard to discern in the first place because the work is often too transformative to pin any part of it to even a single artist.
DMCA defines copying as theft. Derivative artwork requires paying the owner of the original copyright.
> A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."
Let's tick all that apply:
- based upon one or more pre-existing works [yep]
- (...) any other form in which a work may be recast, transformed, or adapted. [yep]
"Sufficiently transformed" isn't enough to not consider it clearly derivative. The code takes in existing copyrighted art, transforms it, and shits out derivatives. Derivative artwork requires a license to the derivative rights to exist, otherwise it's in violation of existing copyright law. This is an incredibly simple case to argue. The derivatives literally cannot exist without that which they are derived from.
Then the DMCA would be wrong: Theft requires the original owner to lose their property, which does not occur when copying data. This is no surprise as the DMCA has always sucked.
Frankly you missed my point entirely, the DMCA and my/the technical community's general disdain for it doesn't have much to do with what I wrote. What I'm saying is that in 99% of cases AI art is unique enough that you simply cannot pin it to an existing author and say that they were copied directly. There are obvious exceptions when you prompt it as specifically as possible to try to make a copy as best you can (which is still never quite 1-to-1 with the original), but in 99% of cases, it is pretty much not possible to pay the "original artist" because you cannot identify them. What good is an unenforceable rule?
It's encoded in law. I wasn't talking about "what should be", I was talking about "what is".
> it is pretty much not possible to pay the "original artist" because you cannot identify them
there are numerous cases where an AI has spat out "literally just the original image, but badly". It really sucks that AI companies might literally have to- checks notes -"pay the people they're stealing from", though. Oh, my heart weeps for those billionaires that might have to shed a penny from their fortune to help those they sleep upon.
