The issue is clearly not fair use. The "compilation of mere facts" is usually reserved for a data sets. Photographs do not fall under that provision. Nothing in copyright judges "quality" as an issue of ownership, just the creation of a work.
In other good new, the Google Book Settlement was torpedoed. Google is evil and the good won in this case. And the judge threw out the idea that the copyright holders could be a class that Google could settle with. But be careful if Google tries to lobby congress to alter copyright protection.