The law makes a distinction between news and commercial, allowing much more fair use in news than commercial media. This is good. But there is a wide grey area between, on which lives boingboing, fine art, outsider art, family photos, etc.
My inclination is that there shouldn’t be hard and fast rulings where the fair use is always decided on a single principle (eg “if it is publicly viewable then it is always allowed as fair use”) but rather some weighting of factors. David vs Goliath is a fair thing to consider, as is distribution, revenue, audience, percentage used, identifiability, even intent (adversarial vs gift), and on and on.
I presume the courts know this, and won’t be tricked into an overly broad ruling based on what most agree to be a single hard case.
As for this particular case, I lean towards remix rights and fair use. But if say the street was closed to the public for the shoot, or if the artwork were photoshopped into another street, and factors, I might be swayed.
