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Conan O'Brien: Transformed Background an Infringement?

Conan O'Brian, the new host of NBC's signature late night show, has transformed from Carson's curtain, to Leno's cityscape, to what truely looks like the other-worldly Mario Brothers:


The above background from NBC, with the overlay of Mario's kingdom by the good folks at Serious Lunch, (they have an animated gif there that is a challenge to watch for more than a few seconds), show that it's hard to dispute the two are the same. They also have a link to a much larger version for you to look at in more detail.

So, the question is:

Derivitive work?
Was the use transformative?
Did Conan/NBC need to license the scene?
If permission for a derivative work is required, but NBC did not seek it, would Nintendo likely sue?

I have my own opinions on this, but what say you?

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