Are you implying that the photographer's digital assets aren't being used, but that the alleged infringers somehow recreated the bits and the fact that they are identical is coincidental?
Let's assume that this is a valid characterization of things. Now, we could try flipping one or more of those bits. Surely the soundness of this argument guarantees that the resulting bit sequences are not protected so long as nobody else ever arranged those bits that way, and we're free to use them, right? In fact, we would be the only ones allowed to use the resulting bit sequence then.
Problem is, if we actually did this, the protection status of those bits in real life would not comport with the results we outlined above. Specifically, we would find that many of the resulting bit sequences would be just as off limits to us. That's because copyright is not about bits, and the original characterization that it is is not a sound one.
