[1] On appeal, the Second Circuit affirmed the following year, with Judge Robert D. Sack writing for a unanimous panel that found Koons's fair-use claim even stronger.

[2] Judge Robert Katzmann, in a concurrence, criticized the court for attempting to assert broader principles rather than limiting its decision to the specific facts of the case, which he believed the better approach.

He identified three factors on which a defendant might prevail when accused of infringement: Fair use remained, on those grounds, a purely judicial construction until 1978, when Congress codified them into law with the Copyright Act of 1976.

Section 107 formally recognized fair use, based on case law to that point, providing for the same factors Story identified, with the first one split into "the purpose and character of the use" and "the nature of the work".

[11][12] Leval also rejected the transformative use claimed by the defendant in deciding American Geophysical Union v. Texaco at trial, since its photocopying for the library at its research center "supersede[s] the original and permit duplication, indeed, multiplication ...

The use of a large poster of artist Faith Ringgold's work in the background on the set of Roc,[20] a Seinfeld trivia quiz book,[21] and purely decorative eyewear used in a clothing advertisement (in an opinion written by Leval after he was elevated to the Second Circuit) were found not to constitute transformative use.

While the magazine's creative director suggested the model to use, the brand of nail polish and the jewel-encrusted silk Gucci sandals she wore, Blanch chose the camera and film and lit the scene based on her years of experience.

Before trial, Stanton had to resolve a difference between the parties when the defendants objected to Blanch's motion to file an amended complaint seeking punitive damages, arguing that that remedy was unavailable in copyright-infringement cases.

On the parody issue, Sack found Niagara more in the vein of what Campbell defined as "satire", not dependent on any single work and thus less entitled to substantial copying: "[I]ts message appears to target the genre of which Silk Sandals is typical, rather than the individual photograph itself".

But that still required making the distinction, and Koons had in his deposition provided a justification for his copying that the court found adequate and that Blanch had not offered any response to:[37] I considered them to be necessary for inclusion in my painting rather than legs I might have photographed myself.

For the third factor, the portion of the original work used, Sack noted in addition to being within the bounds of Koons's stated intent, his use of the model's legs and sandals had excised from the image two of the most significant elements she had brought to the photograph, the man's lap and the surrounding airline seat and cabin.

[40] Katzmann agreed with the panel's general holding on fair use, particularly the fourth-factor analysis that showed no market impact since Blanch did not make money from the reuse of her work, unlike the plaintiff in Rogers.

He distinguished the secondary use in that case (education about the plaintiff's cultish aspects) as one specifically enumerated in the preamble to the statute outlining the fair use factors, whereas Koons's was not.

I would continue to answer those questions as necessary to decide particular casesAfter the Second Circuit affirmed Stanton's decision for Koons, the case returned to the Southern District.

Stanton also found it significant for this motion that Blanch had not claimed any monetary damages, seeming to him instead to seek "to punish an artist who seemed to have embarked on a series of appropriations of others' work without credit or payment.

She argued that combining it with the similar Raising the Flag on Iwo Jima and adding the hashtag "#NeverForget" to the images constituted transformative use sufficient to sustain a fair use defense.

[47] In 2021, Judge Kiyo Matsumoto of the Eastern District of New York looked to Blanch to better define satire after Boston Celtics point guard Terry Rozier was sued by the maker of the Ghostface mask used by villains in the Scream horror movies.

Stein applied a test derived from that case ... for a satirical purpose, could the defendant show a "genuine creative reason" for reusing the image, or did it instead seem as if they were simply lazy or disinclined to create a work of their own?

[49] Other observers who had found Bill Graham Archives' expansion of transformative use an error believed that either the Second Circuit en banc or the Supreme Court would reverse, according to UCLA professor Neil Weinstock Netanel, until Blanch.

While it was "not entirely all-fours on point with" the earlier decision, it reinforced the importance of transformative use in the fair use equation in general and the centrality of whether the defendant used the work for a different expressive purpose, he wrote in 2011.

[50] "The case shows the remarkable extent to which the transformative use concept superseded the commercial/nonprofit dichotomy in determining which side the first factor favors", wrote copyright lawyer Kim Landsman in a 2015 Fordham Intellectual Property, Media & Entertainment Law Journal article.

Sack's opinion for the Second Circuit had, Landsman allowed, been more balanced in addressing this even as it reiterated that the transformative-use inquiry was central to the case, leading it to the satire finding.

[51] Landsman attributed the difference in outcomes for Koons between Rogers and Blanch to several factors, some of which had also been identified previously by others: greater cultural acceptance of appropriation art in general and Koons in particular in the years between the two cases,[c] the Bill Clinton-appointed Sack's focus on First Amendment issues in his Manhattan law practice prior to his judicial service (whereas Judge Richard J. Cardamone, author of Rogers, was a more personally conservative Ronald Reagan appointee from Utica), Campbell's shift in emphasis towards transformative use from the commercial-noncommercial question and a recent judicial trend in favor of fair use generally.

He found this a striking contrast to Rogers, decided prior to Campbell, where the Second Circuit had categorically rejected Koons's satirical purpose as justifying fair use.

[5] Koons's extensive affidavit regarding his intent was, Landsman believed, largely "ghost-[written]" by his lawyers, having seen how their client's inability to explain the same in Rogers had hurt him in that case.

Landsman found Koons's use of "quoting and paraphrasing", terms most commonly associated with text, for his use of photography in Niagara "odd, because doing either in a written work would require citation."

[51] In a 2019 article, William & Mary's Laura Heymann agrees: "Koons (or his lawyers) had figured out that the key to success was a cogent, artistically plausible story about what he intended to communicate through his work."

"[56] American University's Peter Jazsi sees Blanch's broadening of transformative use, in contrast to Rogers, as:[57] ... reflect[ing] similar shifts in the cultural positioning of copyright ... [This may be t]he most interesting explanation of the Second Circuit’s revised take on Jeff Koons: that the rhetorical structure of the Blanch opinion represents a significant move away from the Modernist author-worship, and an early signal of a perceptible shift in how courts will increasingly understand the relationship between author and work in years to come.

It represents, in fact, a rejection of the grand narrative of authorship and "author-ity," in favor of an approach that distributes attention and concern across the full range of participants in the processes of cultural production and consumption.

As such, it may signal a general loosening of authors' and owners' authority over, by now, not quite so auratic works, allowing greater space for the free play of meaning on the part of audience members and follow-up users who bring new interpretations.He describes this as a "postmodern" copyright: "[L]aw may be absorbing an attitude of skepticism about fixed identity and stable point of view—recognizing what has been clear for some time in arts practice and aesthetic theory: that much like the natural world, constructed culture is fair game for reinterpretation.