>

But, the USA has given copyright to AI generated art as told in this article so clearly it can clear that hurdle.
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I feed an AI my original work and it creates something based on my original work  
I feed an AI a prompt that contains creative expression and it is able to interpret and execute that expression in a way that closely matches my intent  
I feed an AI a detailed series of instructions to draw something to exact specifications and it correctly follows my instructions. The totality of these instructions represent my creative intent. This would be roughly equivalent to doing the same thing through a GUI, but perhaps the instructions are less specific. I think The Next Rembrandt most likely falls under this

Have you used Midjourney a lot or spent a lot of time in discussion spaces around it?
It absolutely does #1. In fact, it's a very popular sort of post to both the discord and the reddit group where someone feeds in their own artwork anything from sketches to photographs. MJ takes image prompts.
Number two seems a little hard to quantify. A broad reading would be matched by any "Fat Darth Vader" image people input and got the thing they were looking for, but I sense you mean something narrower.
Number Three it can do, although it's tricky and takes a lot of work learning the syntax and nuances of MJ as a tool. Yes it's easier to get a slick looking result with relatively simple prompts. As an example, I wanted icons for an info video I was making. I wanted the icons to stand for four concepts I was talking about, I wanted them to be in a simple clear particular style. I experimented and tweaked until I got pretty much exactly the images I was imagining. I might have otherwise made them myself and would have had a pretty similar outcome. I'm a slow draftsman and I thought, correctly that I could do it quicker in MJ. The results are absolutely my specific intent. >

!delta
For number one: I didn't realize you could set it up to train exclusively on your own works or create something from your own works. This would absolutely be something copyrightable.
Number two was partially tongue-in-cheek, I think if an AI is able to recognize those concepts we ought to give it a voter's ID.
Number three could also be my own ignorance at work. If I were to sketch out an idea as a base and then try and craft prompts until I got something that looked like my idea (possibly inked or with colors), then that would definitely fit.
I think this may be a mea culpa, I've only been using the online ones (artbreeder, hotpot, nightcafe, etc.) and I just used midjourney as an example since it's well known >

Ah, I see. Well, it's pretty close even if it's not exact. You and another commenter cast enough doubt on it, in any case, that I don't think I can firmly hold a position that it wouldn't be copyrightable.
In practice, courts are going to have a nightmare disentangling what belongs to who. I imagine this is going to be like the issue with transformative/derivative works where there isn't a "bright line" test as to what's a fair use collage and what isn't fair use. 
This video sparked my initial curiosity: someone tuned stable diffusion to be based on public domain images, and is apparently working on one that is trained on only public domain stuff. My initial assumption would be that anything it outputs would likewise be public domain.
However, I think with the evidence you presented, there's enough to say that it's possible for someone to create an original work using midjourney, stable diffusion, or a similar AI. >

Yeah the legal situation is going to get weird.
I personally think AI is going to necessitate a paradigm shift in intellectual property as a concept and legal framework. Just like the printing press gave us the beginnings of our current system. >

!delta
(partial for your last point, the others I disagree with)
To your first point- please read the title of the post, I'm not talking about whether midjourney is fair use or not, I'm talking about whether an output of midjourney could be considered copyrightable even if all of its source material was public domain.
To your second point, nobody draws exactly what is in their mind or what they observe, even to the most talented artists, but there is some intent in how you move your pencil or brush, and the totality of what you drew is based on that. Extremely simple flowers may not be copyrightable if they do not possess any degree of originality. (e.g, if I just draw a circle with a pencil, it's probably not sufficiently original to be copyrightable). However, US law specifically states that it does not consider "The Author’s Skill, Experience, and Artistic Judgment" for whether something is copyrightable.
To your third point, there are a few examples given in US copyright law for things that would not be considered original works:

A photograph taken by a monkey.
A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern

I think that having the atelier generate random flowers over and over until it matches what you want may fall under the second one, but I am not sure. It's a random process, but it did create a discernible pattern, and to a certain extent is based on human selection. However, you may be able to say the same about looking for seashells on the beach until you find one that matches what you had in your head.
It's enough that it makes me think that midjourney could fulfill the "authorship" requirement for original works though I still doubt it fills the "originality" requirement. The prompt is a process or set of instructions to the AI which is still inherently uncopyrightable. Under what you describe, if I were to enter the same prompt and get the same result as you (or one aesthetically similar enough to be nearly indistinguishable), I do not think I would be liable for copyright infringement upon an "original work." >


I'm not talking about whether midjourney is fair use or not

I know what you're talking about, fair use can allow derivative works to be copyrightable. You can buy Barbara Kruger coffee mugs even though they feature found photographs because the works she made are unique works under fair use. Same way a parody movie can feature parodies of copyrighted characters and still be copyrighted.

there is some intent in how you move your pencil or brush, and the totality of what you drew is based on that.

What is the difference in your mind between the brush and the prompt? Are these not simply both tools for making a visualization?

I think that having the atelier generate random flowers over and over until it matches what you want may fall under the second one

It's not random though, they have been given a set of instructions inline with a vision. 

However, you may be able to say the same about looking for seashells on the beach until you find one that matches what you had in your head.

This could be an original work depending on context, for example, if you brought the object into a gallery and titled it. >

The part you are missing about intent is that you don't use 1 prompt. You use hundreds, wittling down the result until you get the one combination of magic words that fits your intent. Its not even about the actual meaning of the words, its about what number they represent, tricking the machine into responding differently.
More or less the third approach. >

I disagree here: US law is clear that effort is not sufficient enough for whether something counts as an original work (Feist Publications, Inc., v. Rural Telephone Service Co., 1991). The originality of the first prompt is equivalent to the originality of the final prompt. >

It might not be sufficient to be considered "original" work, but I'm not seeing how it can't be considered fair use. If I take a bunch of magazine clippings and make an original piece of work out of it, that would be fair use, no? >

I already stated this in my post:

The use of someone else's copyrighted works in training data does imply that works made from it are derivative works, but it's difficult to say "how" derivative since that is going to vary a lot based on the prompt, engine, etc. There are plenty of cases of people using others' works for things like collages, etc. and courts end up deciding that the final result is a new copyrightable work owned by the person who made the collage. There are also cases where the person borrowed "too much" or did not add in any original/creative effort, thus it was ruled a "derivative" work.

Fair use based on derivative works is highly subjective and dependent on case-by-case. Hence why I'm not talking about fair use. I'm saying that even in cases where all training data is public domain, I don't think you can consider the results to be a copyrightable "original work" >


When we’re talking about original/authorship, my core view comes down to seeing AI-generated art as a derivative of the training data

It is debatable. While AI engines do train on data taken from preexisting works, they are training it, as we understand it, in the same way as human brain trains itself on experiences. So if we would consider AI trained by making it "look" at images and notice trends and patterns that are needed to create a painting a derivative work, we would need consider all human art as derivative work.  

The training data in this example is public domain, ergo, not my original work.

Does not matter. Even if we consider AI art a form od derivative work (debatable), derivatives of work in public domain are acceptable to be considered "original work" under US copyright law - see 311.2.

E.g., if I were to prompt an AI to create an “ink drawing of London as seen through a window in the style of art deco,” I cannot see any court ruling that phrase as copyrightable.

And no one is doing so. You seem to misunderstand. What you copyright is a specific work that is generated using AI as a tool. You may use the same phrase and create a completely different piece of artwork that will not be copyrighted.

If you’ve used an AI art generator, the problem with entering the second phrase is obvious: the AI will not be able to capture the author’s intent

And that is the reason why AI art IS copyrightable. Citing 313.2 you mentioned:

the Office will not register works produced by a machine or mere mechanical

process that operates randomly or automatically without any creative input or
 intervention from a human author.
says that specifically. AI does not capture authors intent but generates images - authors intent is captured by selection of prompt, adjustment of prompt selection of images for further processing and final selection of image to be upscaled.
None of examples in 313.2 is applicable to AI art, as human author is directing the process from start to dinish.

It’s true that photoshop and other programs are just following (simpler) instructions, but the results are much more closely aligned with the author’s creative intent and expression.

No one but author is capable of judging result in terms of "author’s creative intent and expression". AI generated is inherently not random because even at it simplest there needs to be creative input in form of prompt and selection of one of several pictures.

Essentially, there are a few things that I think would be copyrightable:

I feed an AI my original work and it creates something based on my original work
I feed an AI a prompt that contains creative expression and it is able to interpret and execute that expression in a way that closely matches my intent
I feed an AI a detailed series of instructions to draw something to exact specifications and it correctly follows my instructions. The totality of these instructions represent my creative intent. This would be roughly equivalent to doing the same thing through a GUI, but perhaps the instructions are less specific. I think The Next Rembrandt most likely falls under this
I do not think midjourney or other popular AI art-generators currently do any of these

is possible in nearly every AI generator.
is possible in nearly every generator
is programming your own AI generator, which is also possible

I think your view comes from lack of understanding how this technology works. >


they are training it, as we understand it, in the same way as human brain trains itself on experiences

a monkey's brain operates much more similar to a human's than some back propagation algorithm on neural network.
despite that, a work of art made by a monkey, under US copyright law, is not considered copyrightable.
If we accept the premise that the artistic creativity is from the machine learning model, I think the legal conclusion should be that the result shouldn't be copyrightable at all, in the same way that the image from a monkey curiously messing with a camera isn't copyrightable.
I personally disagree with your comparison of neural network learning to human learning.  I'm just saying where your own premises lead. >


despite that, a work of art made by a monkey, under US copyright law, is not considered copyrightable.

But not because "monkey art is not original" but because of decision that "To qualify as a work of 'authorship' a work must be created by a human being".
Discussions about specific laws are not interconnected - this was a part talking about what is an "original work" is under US copyright law.

If we accept the premise that the artistic creativity is from the machine learning model

That would be assuming that artistic creativity is from tools you use. AI art is generated based on interaction with user who is the one expressing creativity through use of tool.

I personally disagree with your comparison of neural network learning to human learning.

To simplify - we are showing examples of how an art should work (using various examples) and judge outcomes to choose best ones, those who make best ones are then further trained. This is exactly how human learning happens - we learn on examples by doing and do it enough times until we make it right.
AI is just a machine that does this much better, same as it does math much better.

I'm just saying where your own premises lead.

What premises? This is specifically discussion about US copyright law? >


This is exactly how human learning happens

no, it isn't.
when a machine learning model sees depictions of wind, it might note that curly lines are often used to represent it.  That objects in what looks like wind might look open or out of place or further to the right in the frame (as wind is often depicted in art as moving left to right in works of art, at least in cultures where writing is left to right).  Those correlations can be encoded in the learned model, which can then create similar features in produced images.
Human artists might be influenced by other artists about how to represent wind.  But, their sole understanding of wind isn't derived from copying others.  Human artists can feel wind.  They can see it through what it pushes or carries.  They can hear it.  They can smell the air that wind brings.  they can know that wind tends to blow from the ocean in the morning as the sun heats up the ground faster than water, and to the ocean after dark as the ground cools faster than water.  They can see torn off roofs and know that wind caused the damage.
So, no.  Updating sets of vectors of numbers using back propagation to learn from a large set of images isn't the same thing as human learning.
you don't need to "simplify" for me. >


But, their sole understanding of wind isn't derived from copying others.  They can feel wind.  They can see it.  They can hear it.  They can smell the air that wind brings.  they can know that wind tends to blow from the ocean in the morning as the sun heats up the ground faster than water, and to the ocean after dark as the ground cools faster than water.

And they will still portray wind in a way that was already used by artists before, or audience will not understand their art as having anything to do with wind.
We are not talking about AI learning "understanding of wind" but learning how to portray wind in art. That is something that will be a derivative process for human artists.
AI is a tool and is used to take your "understanding of wind" and create an art without need for derivative learning.
What you described is a difference between AI tool (what we have) and true AI (something that is still s-f). >

Imagine if I took a paintbrush and started flinging it around a canvas randomly using colors I picked blindly. This is an actual technique used in art, such as that of Pollock. The resulting piece would be considered my intellectual property. I wasn’t actively controlling or influencing the results, I wasn’t basing it off of something I’d made, and I wasn’t putting any creative expression into it(since this is a well known and easily replicable technique). But it’s still my intellectual property. Why? Because I initiated the creation of the piece. Even if I did nothing else of value, the brush couldn’t have made that painting on its own, and you can’t attribute creativity or agency to the brush, so the painting is mine. Likewise, an AI is not a freethinking agent that can make things, so even if I banged the keyboard and just took the first result my nonsense prompt gave me, by initiating the process, the image is intellectually mine, and therefore copyrightable. >

I disagree, your example clearly does not fit the requirements set in US copyright law to fulfill "human authorship." It explicitly states that random processes from a machine do not constitute human authorship:

A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern. >

You forgot randomly and without any discernable pattern in that quote, which isn't what the AI does. >


“Original work” in this context does not mean “this thing never existed before” since randomly generated items or items generated through nature are not copyrightable under US copyright law.  
See 313.2 for examples – link to PDF on copyright.gov. I don’t really care if AI-generated art counts as “art” or not, since that has a lot more to do with whether or not you like AI-generated art.  
US copyright requires that copyrightable materials are:  
A work of authorship  
Original  
Fixed

You are misunderstanding your own source. The linked section is about the first point, authorship, not about the second, originality.
Originality just means not being a direct copy of something else, and almost all AI art that wasn't intentionally prompted to be as derivative as possible, passes that.
You can argue that AI art isn't copyrightable in the same way as an act of nature or as a security camera footage isn't, but that is based on a lack of authorship, not a lack of originality.
A direct scan of someone else's artwork can't be copyrighted because it lacks Originality, even if it has Authorship, in the person who did the scanning.
A piece of driftwood shaped by the sea to look interesting can't be copyrighted even if it has Originality, both in the colloquial and the legal sense, because it is lacking Authorship. >

This may seem like splitting hairs, but I am being specific about the wording of an "original work." It may have been more precise for me to say "original work of authorship" or just plainly "copyrightable." This has originality, authorship, and fixed as its requirements.
I argue that ai-generated art does not fulfill originality requirements because it is derived from unoriginal materials: the prompt (which in most cases, would fall under uncopyrightable "instructions" which are not original) and the public domain works used as training materials.
Originality is a little more complicated than just not being a direct copy: instructions, processes, data, facts, and so on are not considered original. Even short phrases are not original: book titles, short slogans, and so on could be trademarkable but they are too short fulfill the "originality" requirement and thus are not copyrightable.
An example of combining uncopyrightable materials and public domain that would not fulfill the "originality" requirement is given in the text:

A public domain photograph of Winston Churchill combined with the
word “Commitment” and the quotation “Never, never, never give up."

My logic is that combining uncopyrightable instructions (the prompts, in most cases, as well as the functions of the AI) with the public domain images would similarly produce something that does not fulfill the originality requirement.
I say "in most cases" since my stance on the originality of prompts has shifted. I now think it is plausible that someone could use prompts in a way that leverages creative expression. >


Originality is a little more complicated than just not being a direct copy: instructions, processes, data, facts, and so on are not considered original. Even short phrases are not original: book titles, short slogans, and so on could be trademarkable but they are too short fulfill the "originality" requirement and thus are not copyrightable.

These are all related concepts though.
You can't copyright the circumference of Earth, because you didn't create the circumference of Earth, it's just a number that was already out there and all you did was copy it.
You can't copyright the TV show title "You", because you didn't invent that word, it already existed, you just copied it.
But the idea of originality is still used closely to the colloquial sense here. If a rock falls from a mountain and creates an interesting carving in the mountainside, the claim of IP law is not that the rock didn't really create an original image, but that a human who records and distributes it, can't claim to have created an original work himself (and the rock can't claim to be an "author")
But these are still two separate concepts that you are conflating.

My logic is that combining uncopyrightable instructions (the prompts, in most cases, as well as the functions of the AI) with the public domain images would similarly produce something that does not fulfill the originality requirement.

But the AI doesn't combine the prompt and the training images. The training images don't even exist within the AI by the time an image is generated. It just uses the prompt, and draws a new image based on that.
You can argue that the process that it used to learn is not identical to what a human would use to create, and for that, the AI deserves not to have legal authorship, but it is a kind of creation process as evidenced from the fact that it ends up creating new pictures that haven't existed before.
The strongest legal argument against copyrighting AI art, is that the AI is creating original images, but it is by definition not an author as it is not a human, and that the person feeding the prompt isn't creative enough to claim to be the author either, he just takes the actual image output and copies it, as one would copy an original image that was shaped by the elements or by an animal.
You are adding an unnecessary complication by having your argument rely on the new image being a combination of the prompt and the training material, which it simply isn't. >

We may have to agree-to-disagree on the "originality." I see the prompts as instructions, which are uncopyrightable because they are not considered legally "original." Human-crafted prompts have human authorship, but in most cases do not have originality, hence why I do not think they fulfill the "originality" requirement. I do not see any other way to interpret the law.
I may be skipping over steps, but it is my understanding that an AI first starts as a set of training data and some human-created algorithms to process that data. Together, this generates another set of functions which the AI uses to process prompts to craft images.
So we are combining the prompt, the training data, and the initial functions in order to create the final output. If none of these three things have both "originality" and "authorship," then I do not think we can call the final output an original work. I think if one of these things has both "originality" and "authorship," then you may be able to consider the final output an original work.
So any of these three may be original works:

Functions that are tuned throughout the process with minimal creative effort to produce a non-random result (Such as with the AI for "The Next Rembrandt")
AI art derived from original work (which I have since learned midjourney is capable of)
A prompt that would be considered sufficiently creative (which I have since learned is plausible with current technology, but I do not know if there are any cases where someone has achieved this) >


So we are combining the prompt, the training data, and the initial functions in order to create the final output

No, we are not.
Two things being used to create a third separate thing, is not the same as "combining" two things.
A novel written by Stephen King in MS Word, is not "a combination of MS Word and Stephen King", a painting made by an elephant using it's trunk, is not "a combination of paint and elephant trunk".
Furthermore, originality isn't when one of the ingredients is itself original work of art. Originality is when the reslting artwork is more than a  copy of an existing one.
After all, Stephen King is not an "original work of art" himself either. A novel that he wrote isn't original because one of the ingredients thrown into the combination of things used to make it was an original artwork (that would actually just be copying), but because it is more than just a combination of ingredients copied into it.
The reason why a work by him is copyrighted and a work made by an elephant isn't, is not because he threw more original artworks' copies into it, but because he is a human and that's it.
This is an entirely separate issue from originality, which is actually lessened by a work having direct source materials, even original ones. >

Everyone should have heard of the comic book made with Midjourney that got a copyright in September.
The Copyright Office has issued a notice it was revoking it leaving the artist 1 month to challenge the notice, which they did with help from Midjourney.
Article about this
Their response to the copyright challenge >

The current Director of the U.S. Copyright Office doesn't rule out copyrightability for either text prompts themselves or images generated by text-to-image systems. >

"There is nothing new under the sun." All works of art and imagination have their origin in previous minds, whether biological or electronic.
Edit: TL;DR >

You did not read the first paragraph, I have this in bold text. This has nothing to do with colloquial meanings of originality, I'm going based off of whether it is original under US copyright law. "Original work” in this context does not mean “this thing never existed before."