Generative AI Art: Copyright Infringement and Fair Use

The discussion of AI copyright infringement or fair use often skips over all of the required steps of the infringement analysis in order to focus on the most intriguing question, "Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?"; and then the discussion skips further ahead to, "Would the AI have a fair use defense, most likely under the transformative test?"; These are relevant questions, but in isolation from the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This skipping of topics and stages of the infringement analysis does not train our attention to a properly accused party or entity whose actions prompt the question. The leaping from a question of infringement in the creation of training datasets to the creation of foundation models that draw from the training data to the actual operation of the generative AI system to produce images makes a false equivalency regarding the processes themselves and the persons responsible for them. The questions ought to shift focus from the persons compiling the training dataset used to train the AI system and the designers and creators of the AI system itself to the end users of the AI system who actually conceive of and cause the creation of images.