The user didn't create it, the cloud-hosted machine owned by OpenAI, that charges for access, did.

When prompted with 'futuristic robot' and 'italian plumbers'.

So the argument is that if openAI had not used copyrighted and trademarked source material, this wouldn't be happening. It's not transformative as it's reproducing these copyrighted materials and trademarks verbatim.

That's how it makes sense.