Human rights trump design rights - the Darfurnica case

Thanks to Mark Schweitzer at the IPKat for covering an important Dutch design infringement case.  The judgment is here and an unofficial English translation by Kennedy van der Laan (who, much to their credit, acted for the successful defendant) here.  Some further background is here and here.
"Darfurnica", left (inspired, of course, by Picasso's impassioned agonising antiwar masterpiece Guernica), is a picture by Nadia Plesner.  You may like it or not, but it is a serious enough work with a clear point to make about a worthy cause, explained somewhat on her website. 
The problem is - if you look quite hard, you can see that the child in the centre is carrying a handbag which sports Louis Vuitton's pattern the subject of their Registered Community Design RCD 000084223-0001. 

In addition to the painting itself, it seems that there have also been sales of T-shirts featuring the picture (see left, sported by the artist herself), some or all of the proceeds from which went to Darfur charities.  The image of child and bag was also incorporated into some further panitings of which it formed the dominant element. 
LV obtained a preliminary injunction against her (a very unofficial translation of which is here) largely, it seems, because of these commercial (though not-for-profit) uses of their design - although they made it clear eventually that this injunction was not intended to cover the painting itself.  Plesner, however, garnered a good deal of support for her right to artistic freedom and, of course, in support of the relief campaign for Darfur.  The injunction was appealed, and judgment was given on 4th May.
No doubt many of us instinctively favour an artist championing the poorest over a brandowner supplying the richest.  However, infringement under the Community Design Regulation is fairly clearcut.  Whilst the design formed a small part of Plesner's painting, her painting used the design in its entirety, and "use" of a design (other than for private and non-commercial purposes) is an infringement, in particular by applying the design to products and selling them.
Nonetheless, the Dutch Court (showing that judicial creativity that occasionally makes the rest of Europe gasp in admiration, alarm or just plain bafflement) held that the artist's right to freedom of expression under the European Convention on Human Rights had to be balanced against LV's property rights in their design.  In this case, the balance came down in favour of the artist, and LV's injunction was discharged.
The Dutch Court have clearly, in my opinion, got this particular case right.  Community intellectual property law is secondary legislation which is subject to the Treaties themselves, and incorporated within the treaties are the provisions of the European Convention on Human Rights, which provide both for freedom of expression and for the right to property (including intellectual property).  In this case, the Court found that the use of LV's design did not seek to implicate LV in the Darfur disaster, but was a point legitimately expressed through the medium of art, without originally having an intention to free-ride, or indeed any commercial intention.  Thus, Convention rights carve out something in the nature of a defence to the broadly-defined acts of infringement of a design (or perhaps, in the UK, freedom from the grant of remedies under s12 of the Human Rights Act.)
However, the question for commercial designers will be - how much further can the artist go?  Featuring a protected design as a small part of an original picture (without, it seems, derogatory intent) is a small matter, but abstracting a small part of the picture (including the design) and putting it onto the T-shirt was quite a jump.  If, for her next T-shirt, the artist removes the child to leave only her painting of the LV bag (which is no doubt at least as artistic as Warhol's soup cans), is that excused too?  And does the Court's reasoning apply equally if the same T-shirts are sold for profit rather than for charity?  More generally, should an initial artistic intention expressed in producing an original artwork excuse subsequent purely commercial downstream mass-production of reproductions of the image?  That seems a step too far, even in a good cause.