I shouldn’t clarify - I’m not talking about the Kermit images, I’m talking about Dalle2 itself. If you had it render Neo from the Matrix, albeit imperfectly, would that be transformative use?
If you drew it yourself there’s precedent under fair use. If you made something that drew it when prompted for “The Matrix” presumably it knows what that is and therefore is more ambiguous
That remains to be seen. If I take a photograph of a still from the Matrix and print it, that's not the same as me photo-realistically drawing the same still from memory, which is itself not the same as me photo-realistically drawing it while looking at the still itself.
Copyright law is way more nuanced than you think, especially around fair use.
It's established that you can't assert copyright over a picture generated by an ML algorithm. I don't think it's established whether a picture generated by an ML algorithm can infringe someone else's copyright (e.g. if you ask DALL-E to produce a picture of Mickey Mouse, and it does a perfect rendition of him, is this picture in the public domain, or does it infringe Disney's copyright?).
Hang on, I don't see where that said that you can't assert copyright over a ML generated picture. I think the decision says that the ML algorithm itself cannot assert copyright?
The decision says that no one can be considered the author of that picture, as copyright only protects human creative works. It is possible that the work infringes someone else's copyright (the decision doesn't address this point at all), but unless that happens, the image is in the public domain and you can freely copy it.
Note that, unlike patents and trademarks, copyright doesn't require registration. The court could have found that, while the AI can't assert copyright, the copyright still exists and belongs to the owner of the AI or the designer of the AI etc. Instead, they found that the work can't be protected by copyright, since it is not the product of human creativity.
Edit: here is a citation from the article that I'm basing the previous assertions on:
> Both in its 2019 decision and its decision this February, the USCO found the “human authorship” element was lacking and was wholly necessary to obtain a copyright, Engadget’s K. Holt wrote. Current copyright law only provides protections to “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind,” the USCO states.
That's correct. People do this all the time, sans the giving it away part.
Also, there is no way that you can argue these images are not transformative.