[paulddraper]

Of course they are derivative.

The question is whether they are transformative.

Right or wrong, the bar for transformative use is probably lower than you think.

Artists are the beneficiaries of this, as they can riff on popular works for inspiration, recognizability, social commentary.

Given the existing case law, I don't see a ruling against AI companies as likely.

[doctorpangloss]

> Given the existing case law, I don't see a ruling against AI companies as likely.

Huh? Every corporate IP lawyer seems to think Andy Warhol Foundation v. Goldsmith has foreclosed the fair use defense, and that there isn't much to argue by AI companies to use work without express permission for training.

[paulddraper]

The use of the artwork was a TIME magazine cover, which has the same commercial purpose as the original photo owned by Goldsmith.

It's far from clear that case would apply here.