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There is nothing "fair use" around this: [0] or this [1] which both cases are done without permission and are commercial uses.

[0] https://www.theverge.com/2023/1/17/23558516/ai-art-copyright...

[1] https://variety.com/2023/digital/news/scarlett-johansson-leg...

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Your first reference is an opinion of the lawyers for a concerned party, i.e., meaningless. Lawyers make nonsensical claims all the time. It's one of the things they get paid for.

The situation described in your second reference is already unlawful, regardless of how the image was produced. You're not allowed to make commercial use of images of Scarlett Johansson even if you scratch them on a cave wall with a broken deer antler.

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