UPDATE: End of winning streak for Louis Vuitton

Remember that lawsuit LVMH brought against the Dutch artist Nadia Plesner for using an image of a child holding a Louis Vuitton bag in the painting Darfurnica? A court in The Hague yesterday ruled in favor of the artist stating that her right to freedom of expression outweighed LV's right to protection of property. While it's true that this balancing act between such competing rights underlies copyright law in most (possibly even all) jurisdictions, I'm surprised that the outcome (I haven't had a chance to read the actual judgment handed down by the court) was expressed in such terms. In other words, I would have thought that Plesner had some sort of affirmative defense under EU copyright law akin to the "fair use" defense under US copyright law (which in essence is the embodiment at law of the balancing act discussed above) rather than have to structure her defense along the lines of a "freedom of expression" argument. (This is what I meant when I first posted about the lawsuit).