Nope, copyright strictly depend on whether the infringer makes money from it. By that logic, Neo-Nazis can print up pictures of Batman wearing a swastika and start giving them away for free, and there's nothing Warner Brothers / DC can do.
Right, but technically OpenAi (or Midjourney) isn't the one explicitly generating the copyrighted image. Their tool is, but not based on their own intentions, and it seems that responsibility is on the user who generated the prompt. I don't know much about the copyright laws, but it seems generative AI can be classified as an artistic tool.