[almatabata]

> But what about the images. The italian plumber who looks very much like SuperMario

That looks indeed like a case where any regurgitation becomes a problem in my opinion. I think the closest thing to this would be Fan-art. If I draw a picture of Mario for fun and post it online, it remains fair use as long as its not commercial or used for promoting a product (from my limited understanding). In the OpenAI case they sell subscriptions to their service. You can therefore make the case that they are selling Fan-art for profit.

This leads me to think companies that own this kind IP have a more solid case against OpenAI. It is entirely possible that New York Times loses the lawsuit but Nintendo wins if they sue.