And do they mention that there has never been a supreme court judgment on the issue?
The judiciary are adept in coming to a justification for what they want to allow and what they don't want to allow. In the the Bridgeman case Corel performed their own digitization using the Bridgeman slides. An equivalent act would have been if the wiki-thief had made prints from the digital files and then craeted his own digital files from the prints.
However, in this case the physical jpegs the thief responsible simple purloined the files belonging to another. If that was the situation that came up before Kaplan I doubt he'd have found in favour of people rifling through the computer files of another.
Except that in many cases these are formulaic. Ever wondered why it is that all those local portrait studios churn out the same type of photos?
Layout designs which include placement of lights, distance from subject, subjects distance from background. All of it is predetermined. There are even franchises that will provide a photog with camera, lights, background, etc.
All the photog has to do is make sure the subject is looking at the camera and has their eyes open.