Someone recently asked if she could use a copyrighted photograph of a deceased model taken by a deceased photographer in a magazine article exploring the model's murder. It's an interesting question. And it's one that every nonfiction writer faces eventually. So, what are the legalities involved here? This is how I responded:
* * *
For starters, remember that U.S. copyrights extend throughout the lifetime of the copyright holder plus seventy years. After the copyright holder's death, those rights are passed along to the heirs who can sell them if they wish to a third party, such as a photo agency or a product developer.
Regardless, in this situation, at least, it appears as if the judicial concept of Fair Use is in force. If that's the case, you should be able to use the images for illustrative purposes in your magazine article, with a couple of caveats. According to the Website of the American Bar Association in referencing the right to fair use:
"The first thing that we need to know is that copyright protection does not protect factual information conveyed in the copyrighted work, meaning that publicizing the scores of a sporting event or other factual information such as injuries, retirement, and so forth is considered fair use and does not constitute copyright infringement. What helps to strengthen a fair use argument in a case not involving the use of mere factual information is the use of the copyrighted material for the purpose of legitimate news commentary. For example, when using a clip or photograph to report the results of a sporting event or other factual information, courts have regarded the use of copyrighted material as fair use when the use is (1) brief quotations only; (2) presented in a news report; and (3) presented in a newsreel or broadcast of a work located in the scene of an event being reported."
In other words, if it's a news-related article, which your project seems to be, and only a brief or small portion of the information within the article involves copyrighted material (the photographs), you should be able to make use of that material under the Fair Use act. The final arbiter of your right to do so would need to be the judiciary in the event that the copyright holders choose to sue you for infringement. And, as I like to point out for those who haven't realized it yet, anyone can sue anyone for nearly anything in the United States, so litigation is a very real possibility, especially if the copyright holder feels strongly that his or her rights have been infringed upon.
That doesn't mean that you would lose the case in court, of course. But it does mean you'd have to expend time, energy, and up-front money (and perhaps a considerable amount) in defending yourself in a court of law, whether or not you prevail in the end and receive compensatory or even punitive damages.
In any event, I would certainly attempt to contact the copyright holder of the images in question and explain your intended use before going ahead with the article's publication. The holders may be the family heirs of the model or photographer. They may also be a photo agency to whom the family sold all rights to the images. Even if the latter is the case, you might be surprised to receive a quick "go ahead" from the agency, considering you would be promoting the photos and building demand for their future use and monetization.
If you don't receive permission by the copyright holders, and you're determined to press forward with your article's publication, perhaps you can locate similar photos in the public domain that are free to use. A good place to begin your search is in the Prints and Photographs division of the Library of Congress. You may also be able to purchase one-time rights to use the copyrighted images, particularly if they're currently being held by Getty, Shutterstock, or some other stock-photo agency. If doing so proves prohibitively costly, you might try contacting a local newspaper in the city of the model's demise to see if they have rights to any photographs that their own news photographers may have taken at the time of the model's death.
If none of that pans out, your only alternative may be to contact an attorney specializing in copyright law for legal advice regarding your options and potential liability.
In cases such as this, clear-cut decisions are seldom common, and an ounce of prevention really is worth a pound of cure.