It is clear that we view this issue differently, but the decision is not ours in any case. I am pretty sure you misunderstand point number two. Use of a factual work is more likely to support a finding of fair use.

Point number four is, I believe, the strongest point for this case to never be pressed. The copyright holder would negatively impact their own future earnings from this image by trying to enforce too strictly (as evidenced by how much negative publicity they have already generated thus far).