“While visual analysis is essential, it is not the only factor in determining intent.”
However, I do note that I disagree with Kosh when she states,
Public opinion clearly influenced the appeals court. Therefore, ongoing public opinion and discourse becomes more important than ever in strengthening, clarifying and defining our fair use doctrine and copyright law in general. If we do not engage in such discourse, then we leave it only to the courts of this country to make decisions for us about what is art and the nature of our intellectual property rights.
True, public opinion influenced the Second Circuit, but that doesn’t mean that courts of any kind should give a damn about “public opinion.” If you’re a member of the American public and you care enough about copyright law, then lobby congress to amend the statute. And if you’re a federal judge, simply look at the statute and apply the law; it’s that simple.