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No I mean logic. There is a very rigorous framework everyone but the Supreme Court has to follow, and you have to be able to connect every decision you make to that framework. US Courts are not allowed to do common-sense solutions such as threaten to saw a baby in half to see which person loves it more. They have to base their decision on rigorous logic.

They can include some elements of "reasonable man" judgement, but the circumstances that require Reasonable Man's judgment are pretty well-known, and it's very unusual for anyone to read a Judge's opinion on what Reasonable Man would say and disagree. On the other hand, common sense is constantly debated.

In this case it's relevant because common sense would indicate that if he has the right to do it under Fair Use, so does she. But if you actually get into the legal tests it's not that simple. There are four. I'll go through them:

1) The "did they change the work enough to count as transformative?" test. He can make this case, given the change in format, the new context, and the art communities endless ability to rationalize ridiculous BS. She is selling her version as interchangeable with his work. Either her version is a replacement for his work (and not transformative) or it isn't. I give him a 50% chance of winning this test (at best), but she simply can't.

2) This is the test where they apply special rules to factual works, unpublished works, etc. It is irrelevant to this case.

3) The test of how much of the copyrighted work was taken for the copy. In both cases it was 100%. But it only applies if the other three tests are tripped. If he can skate on tests one and four he's fine, and we've established he might be able to skate on test one. She didn't pass test one, so the fact that her work includes 100% of his means she's fucked.

4) The test of the actual damage done to the original work's market. The work he copied is a Instagram post which she may not have retained copyright on. Even if she's making money off it, it's impossible to claim that her income from selling mas-produced copies of it on the internet would be reduced by him selling a single copy for $90k. And as I pointed out back in test one, her entire marketing pitch is "pay this $90 rather then the $90,000 that asshole charges," which makes it rather difficult for her to claim she isn't actively trying to destroy the market for his work.

The article actually describes a case in which he took somebody else's photos from a book, made some small (but noticeable) changes, and then sold them for millions. Once he convinced the Appeals Court he'd passed the first test, the rest were irrelevant, and he forced a favorable settlement. I suspect he'd have trouble proving the first test in this case, as he didn't actually change anything about the images themselves, but he's got the kind of money to hire some really good lawyers.

So yes, the Courts are 100% logic, and that logic could easily turn into an extremely unsensible verdict for our poor Suicide Girl.