Both show that there is no intent for individual infringement, with along with no infringing material being produced and the significant non-infringing commercial use like family photo touch-ups, it makes for a very strong narrative for the defense!
To change lanes to art for a second…
When I’m using a tool like Logic I can coax drums, Hammond Organ, 70s analog synths, out of my laptop. I can’t make any of those sounds with my body. I need a tool.
Without Logic I would have to own a drum kit (which I happen to do), know how to play it, know how to record it… with logic I just click a dozen times and I’ve got a drummer playing four-on-the-floor.
So when I do work with a real drummer don’t tell them exactly what to play on a grid like with a drum sampler in Logic, rather they just listen in contribute. Logic has a virtual drummer that does basically the same.
How different is it to fire up another piece of software and employ a virtual painter?
Ok, shift back over to technology and creative work… what are the pros and cons of drum samplers? Don’t they put drummers out of business? Isn’t the trade-off that now a lot more people have access to nice sounding drums and that the world has more music?
It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing.
That's fair. But if you would sample Phil Collins (just to name one famous drummer) to create a Phil Collins sample pack and you'd then create your own drum loop with it that wouldn't mean you can't expect some expensive mail incoming. And it will likely stick.
The easiest way to create original art without having this shadow hanging over you would be to make your own sounds, use licensed sounds or to attempt to license the sounds you want to use (but that are not available for public use). Any other path is likely going to be a legal minefield and may lead to you losing your rep and a bunch of $.
There are plenty of examples of people that did this, went to court and lost.
What is original to begin with? What's original about Bob Dylan's Blowin in the Wind? Certainly not the form! It's a standard AB folk song. Certainly not the chords! The melody? Sure, but very bounded by Western music theory and containing a number of common American melodic tropes. The words and specific rhymes have all be used before in previous poems and light verse. He used a standard 6-string guitar with standard tuning with standard guitar chords that have been strummed in similar patterns on hundreds if not thousands of previous recordings.
Beyond the technical skill required to create something there's nothing left but just a series of choices about how to rearrange what culture has provided for you. A truly original work would be incomprehensible to an audience in a way that a truly original language would be incomprehensible to an audience. The originality, the agency of the artist, stems from the choices being made, regardless of if that tool simulates a drummer based on the placement of notes on a grid or if that tool simulates a photographer based on the input of some key words.
Now, you can certainly say that if everyone has access to Stable Diffusion that the value of its output is relatively diminished and that is of course true. The same thing happened to drum machines. No one is that impressed by a four-on-the-floor beat coming out of a laptop and they soon won't be impressed by simulated painters but this is on a different axis of examination than originality.
The fact that he claims he made it, and that this went uncontested for decades is fairly strong proof that it really is his.
