Law professor Christine Farley has a take similar to mine on Jeff Koons's recent win in the Second Circuit: "As I read the opinion," she says, "I kept wondering why earlier Koons courts could not have taken the same approach."
What was different this time? According to Farley:
"1) Here the plaintiff's photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. ... 2) The court 'gets' Koons' work. In the 1st Koons case, Judge Haight's lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons' 1st career was as a commodities trader & how he hires other artists to make his work.) ... Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to 'raw materials' such as Blanch's photography."
The second point is an excellent one, but I think she may be mistaken about the first. The Second Circuit's opinion says the photograph was published by Allure magazine "as part of a six-page feature on metallic cosmetics entitled 'Gilt Trip'" (my emphasis). Koons did testify that certain features of the photograph "represented for me a particular type of woman frequently presented in advertising," but, unless I'm mistaken, this photo itself was not strictly speaking an advertisement.