Fair use not key --- several other issues in the case.

Edward Lanquist and Jeremy Ray, “Artificial Intelligence and Copyright Law: The NYT v. OpenAI – Fair Use Implications of Generative AI,” Baker Donelson, 02-05-2024, https://www.bakerdonelson.com/artificial-intelligence-and-copyright-law-the-nyt-v-openai-fair-use-implications-of-generative-ai

The court in The NYT v. OpenAI matter will likely bifurcate its analysis between alleged misuses related to training the LLMs (which, based on the case law set forth below, are likely to be found transformative and fair use) and specific generative AI outputs (with a focus on whether such outputs are substantially similar to specific inputs). Addressing the latter example first, let us assume that an AI company has access to a copyrighted work without a license, uses such work to train their LLM, and then creates a generative AI output that is substantially similar to the copyrighted work. Unless the output is determined to be transformative or meets another requirement of fair use, then such output is likely to be found infringing under the current copyright framework. After all, to prove copyright infringement, the copyright holder merely needs to prove that the alleged infringer has access to the copyrighted work and creates a substantially similar work.