> The US Copyright Office has rejected a request to let an AI copyright a work of art. Last week, a three-person board reviewed a 2019 ruling against Steven Thaler, who tried to copyright a picture on behalf of an algorithm he dubbed Creativity Machine. The board found that Thaler’s AI-created image didn’t include an element of “human authorship” — a necessary standard, it said, for protection.

https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.h...

> Creating works using artificial intelligence could have very important implications for copyright law. Traditionally, the ownership of copyright in computer-generated works was not in question because the program was merely a tool that supported the creative process, very much like a pen and paper. Creative works qualify for copyright protection if they are original, with most definitions of originality requiring a human author. Most jurisdictions, including Spain and Germany, state that only works created by a human can be protected by copyright.

https://www.copyright.gov/comp3/chap300/ch300-copyrightable-...

> 306 The Human Authorship Requirement

> The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.

> The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). For representative examples of works that do not satisfy this requirement, see Section 313.2 below.

> 313.3 Works That Lack Human Authorship

> As discussed in Section 306, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable.

> The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

> ...

> Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

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A machine cannot create a copyrighted work. The human who uses it can - and it is the human who uses the ML model to create a derivative work - not the ML model itself.

Thus any derivative work infringement from using Stable Diffusion is from the human creating the prompt doing it. This doesn't attempt to answer the "is the model itself a derivative work".