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:
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?
(Comments, after the Jump)
Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.