All Shelby has released is a drawing that puts him on track to be sued by Nintendo for trademark infringement.

A copyright owner can’t prove infringement by pointing to features of his work that are found in the defendant’s work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.

The "stock" idea of working class hero, gaining abilities from powerups, and South European origin are however all usable.