This feels like a bit of a naive interpretation of the situation. At its core — regardless of specific lawsuits, etc — the questions here are (1) should copyright laws be
adapted to the new reality of generative AI, (2) should artists be able to control how their work is used given generative AI is a reality, and (3) do we as a society think people should be able to make a living as artists, and what are the implications of that either way when it comes to AI models and their use.
Until this point, an artist who has developed their own personal, recognizable style, could be somewhat confident that it is difficult for someone else to generate a new piece of art exactly mimicking their style. That is to say, it was never impossible — there have certainly always been other artists out there who are capable of taking artwork and creative something new in that style — but there were some barriers to getting there, including that those artists aren’t easily and instantaneously accessible to every human being on the planet, that they generally don’t work for free, and that they would need some time to produce their work. The combination of these factors resulted in a system wherein, for the most part, if you really wanted to create something in the style of a specific artist, you would need to commission them, thereby supporting their ability to live and continue creating art. And/or they sold merchandise with their art, or collections, etc.
Now, on the other hand, it is incredibly easy to go to an image generator and have it generate art in the style of a specific (sufficiently well-established) artist quickly, easily, and freely. The barriers have, overnight, gone from being reasonably protective to pretty much nonexistent. As a result, artists are asking themselves how they can continue to live and create art. This is something a sufficiently well-established professional artist used to be able to do before generative AI came into the picture, because other than the odd copycat (which again took time and effort and an actual human with the right ability), they were the only ones who could produce images in their own styles, and this ability was thus a valuable resource that people paid for. If anyone can now produce identical images independently and for free, then this ability may no longer be a resource other people will pay for.
Part of what these court cases are trying to determine is exactly whether any copyright does apply to generated images. You wrote that “publishing, that is a different story, and we already have laws offering such protections both with respect to illegally-produced or copyrighted content”, but those laws are exactly what’s being tested here: artists (and organizations like Getty) are seeing what they claim are AI-generated copies of their copyrighted works in use out in the world (so these have been “published” by some definition — they are not only being printed out and hung in people’s garages for them and their friends to look at in private), and are suing to stop that.
But aside from that, I think there is a real philosophical discussion here. If you’ve trained as an artist your entire life, have worked hard to develop a unique style, and are one of the relatively few artists who have been successful doing so — should a company be able to wait until you became popular, then just take all of your work, and use it to train a model that can produce works exactly in your style easily and without any effort, which it can then provide to people freely or for a subscription?
This also isn’t as much about the output, as about how the output was obtained. If the model did not actually ingest your images, but someone wrote a prompt that involved a super-detailed description of what made your style unique, going into color palettes, line thicknesses, art styles, influences, etc etc, and you would have to get all of that right in order to generate something that looked like your art, then I think most folks would be generally ok with that. But when (1) your prompt can just be “give me art that looks like soulofmischief made it” and it’ll give you just that, and (2) you know that your art was used to train the model in order for it to be able to do that, then there is a question of whether fair use laws should be adjusted to prohibit this behavior and protect your ability to live off of your work.
I also think that regardless of the outcome of these lawsuits, no one is really coming for your own models and hour ability to tinker in your garage. It may not be legal today to duplicate a copyrighted image and hang it in your office, but no one will ever know (or care enough to do nothing about it) if you do. Similarly, even if this use becomes copyrighted, nothing will practically stop you from building your own large model that includes any copyrighted images you want, for your own personal use, in your own garage. But if you then turn around and try to profit off of that model, or if you want someone else to produce a model (thus stepping more into the publishing realm) that’s where a line may be drawn. I personally think that’d be fair.
Finally, zooming all the way out, I believe that it should be possible to make a living as an artist, and I think when we have discussions like these, we should keep reminding ourselves to think about how our technical or legal arguments affect that outcome.