They are taking an artist work and reproducing it - changed slightly. If you did that to a Disney work (AI or not) would they consider it copyright or fair use?
Depends on what you are using it for.
“The general fair use definition is that fair use is any use of a work that is not done in an effort to profit from the copyrighted work.”
Disney considering it one way or the other doesn’t mean anything, legally speaking. It’s not so much about “used a reference” – you can take a movie still-frame and make an oil painting of it and it’ll be your work. It’s about that how the spammers use AI doesn’t have sufficient artistic intent, sweat of the brow, whatever your local standard is, to actually give you copyright over its output, as such it’s as if you had simply photocopied the thing. It certainly is possible to use AI in a way that gives you copyright over its output, even with img2img, but those people ain’t doing it. It’s also possible to photocopy that still-frame in a way that gives you copyright, e.g. if you collage and otherwise transform it in an artistic manner.
you can take a movie still-frame and make an oil painting of it and it’ll be your work.
Maybe but not usually. This is making a derivative work. Derivative have their own copyright, but permission of the original owner is required to make them. In US terms, it might be fair use, if the painter wants to, say, make an artistic statement about consumer culture. EG Mickey Mouse has shown up in South Park episodes for the purpose of satire. That’s fine.
OTOH, if there’s nothing deeper behind the painting, then it’s just unlicensed merch. EG, Disney has come down on day care centers for using their IP.
Whether the OP describes infringement is doubtful to me. No one owns the right to make pictures of EG people next to wooden dogs. On its face, there is no infringement.
OTOH, if there’s nothing deeper behind the painting, then it’s just unlicensed merch. EG, Disney has come down on day care centers for using their IP.
I’m not sure if it affects your larger point, but I suspect the problem with day care centers is not that they’re copying a specific work, but that they’re using characters that Disney owns.
