Unless you can make your prompt so specific that the AI generates substantially the same image every time you run it, I think you're perpetually vulnerable to the argument that significant decision making was done without human hands and therefore the work is not primarily human created.
As kids we did an art project where you mixed colors with some yoghurt-like substance. You drop it on the paper and then fold it. This created these beautiful arrangements of colors.
Does this mean that those works are not copyrighted either since the kids didn't actually direct where each color goes? Every time you do this you'd get a substantially different picture too.
Every time you do this you'd get a substantially different picture
This is actually a bad example. It's too easy for an IP attorney to bring in an expert witness,(read: physicist), and blow it out of the water in a courtroom.
I won't go into the details, but basically, you got different arrangements every time because the human did different things every time. In the case of generative AI, you get different arrangements every time when the human does the exact same thing every time.
So, if you can find it, the counterexample you're looking for is one where the human does the exact same thing every time. (In an unassailable mathematical and physics based sense of the word "same"). But gets different results.
I mean, these edge cases are very sensitive to the exact facts at hand. Even an experienced copyright lawyer can't give you a definitive answer until you go to trial. That's why I said you're vulnerable to the argument, not that you'll definitely lose the copyright.
