To be clear, I wasn't talking about the AI art itself as derivative work. I don't believe that AI art should have copyright protection. I was specifically referring to work created by humans using AI artwork as a component, in this case, a comic book.

I don't think we're necessarily arguing against each other here. I also think the way AI is currently working is harmful to human artists in that it ignores their legal rights by copying their art without permission. I agree that legal protections need to be put into place. However, I'm very concerned how this specific ruling may unintentionally affect human art and human creators in a counter-productive way. 

If I take art in the public domain and use that art to create a comic book, my new creation is considered a derivative work and has copyright protection even though the art I used to create it is still in the public domain. Except, apparently, if that public domain art happens to be made by AI. To my eye, this specific ruling isn't protecting a human creator's rights by denying copyright to AI, which is what I think the intent is, rather it's infringing on a human creator's rights by removing the copyright protection they otherwise should and would have. 

This creates a lot of gray areas for me because it's unclear -- to me, anyway -- just how much usage of AI art will invalidate your copyright. For instance, let's say someone uses a piece of AI art as a reference and draws an all new picture from that reference. Is that considered a new human work protected by copyright? Or has the use of AI in the process rendered the whole thing legally AI? If not, how much do you need to alter an AI image for it to be considered human work? 50%? 75%? 

I'm also personally unclear on what the legal definition of AI art even is. When I am drawing my comics in Clip Studio Paint, there are a number of automated tools (most of which I don't even understand the purpose of, much less how to use them). If I draw something myself and then tell the program to automatically colorize, sharpen, and distort the drawing according to whatever its programmed algorithms are, is the resulting image now considered AI? I don't think so, but I'm not sure why. 

There's also the problem of even determining if something is made by AI in the first place. The comic in this copyright ruling was originally granted copyright protection because the copyright office didn't realize the art was created by AI, and then had the copyright rescinded after they realized it was. Setting aside the fact that this is bizarre given that Midjourney is listed on the front cover as the artist, it raises questions about how the copyright office is going to apply this new standard. I've been seeing artists on Instagram complain because potential clients don't believe they are creating the art themselves as it apparently looks "too AI" (because, of course, the AI was copying that style). So what happens if the copyright office denies someone protection because they mistakenly believe the art to be AI generated when it was actually done by a human? How can they even tell what's AI and what's not if it isn't declared? And if you have to declare it on the honor system, then it's not really protecting anything. 

The whole thing just seems like a giant can of worms that could potentially have been left closed if it was ruled that AI art is public domain, but derivative works created by humans using that public domain art are protected, as they are with everything else. Though, it probably wouldn't have mattered. AI activists are going to continue to challenge the legal system to try and gain broad copyright protection for AI works, and those efforts are going to be challenged, so we're just going to have years and years of legal fights over it either way. 

For me personally, I was initially excited about the prospects of AI art as a tool for making comics, but as it's become increasingly clear that the methodology behind the AI art is infringing on artists rights, obviously my position has changed. I've stopped working on the experimental comic I had been playing around with and won't be putting it out, and I'll be redrawing the one variant cover I had done using AI as a component. I personally don't have an issue with the concept of AI generated art, but the execution has been morally and legally questionable in ways that weren't immediately apparent to me, and the image scraping that is taking artists' works without permission isn't a practice I can support.