Generative Artificial Intelligence Generates Images: Copyright Infringement or Fair Use

The discussion of copyright infringement or fair use about images created by a generative AI often skips over the steps of the infringement analysis. This skipping does not focus our attention on a properly accused party. The focus should be shifted from the persons developing the training data-set and the creators of the generative AI to the end-users of the generative AI who create the images. The key requirement for a copyright infringement action is an unauthorized act of copying. The non-expressive copying removed from the normal copying and excused from copyright infringement is considered to be a transformative fair use. The developers of training datasets, the creators of generative AI systems, and the end-users of generative AI systems play different parts in the generation of new images.