Robert Bernstein and Robert Clarida have a piece [$] in today's New York Law Journal on the Kim Taylor Reece hula case discussed recently here and here, as well as a quite similar case out of Montana involving a photo of a mountain lion. Their conclusion:
"One lesson that can be learned from these cases is that copyrightholders of realistic photographs of humans and animals, particularly in traditional or naturally occurring settings and postures, face uphill battles, and even more so when the plaintiff's work has been translated into a different medium. Dissimilarities that flow from the difference in genre, as well as other differences, even minor ones, may provide sufficient ground for a holding of noninfringement when a court considers plaintiff's copyright to be 'thin.'"
I don't think I've linked to the court's decision in the hula case before; here it is. Bill Patry discussed the mountain lion case back in October here.