License issue: publishing an image of famous person in the scientific paper

Question

A scientific paper to be published contains an image of someone famous. An image is just picked from the Internet.

My questions:

1. Is it a violation to publish such image without permission?

2. From whom a researcher needs to seek the right to this image: the famous individual or photographer?

3. Suppose the image is eventually published in the paper without permission while the journal did not ask for permissions. When the paper is published the author grants the journal rights to publish this work. To best of my understanding, legally the author is not the owner of his paper anymore. The paper is published under Creative Commons license. In such a case, who is legally responsible for the violation: the author or the journal? Who can be potentially sued?

Thanks!

Two follow-ups:

1) How can I know which image I can use without a permission? For example, an image in Wikipedia can be used? I know that I can buy from stock images, but there is only limited number of images there.

2) For obtaining the permission, how I can know from whom to ask? For example, an image appear in some news article. But they could also obtain a permission to it.

Answer 1

1. Assuming the photograph is still under copyright, yes.

2. The copyright owner of the photograph. This will usually be the photographer.

3. You are probably liable, but they would probably complain directly to the journal who would then shout at you. Under a Creative Commons license, you are still the author and "owner", even if you have given permission to people to use it under the license.

   (I say "probably" - it does occasionally happen that you transfer rights to the publisher, who then release it under a CC license with themselves as the owner, but this is pretty rare.)

Short answer: yes, you do need to get permission, and you can't just say "I found it on the internet and it's the journal's problem for not checking".

Answer 2

You can't "license" something that you don't already have rights to. If it is under copyright you need to ask. Most likely you will get permission for an academic paper, but not for a commercial work (a book). If a book, the publisher will have a fund to pay royalties to the copyright holder if necessary. They may even have a source for a royalty free image of the same person. Ask.

On the other hand, even if you are liable under the law, the publisher has deeper pockets and so would most likely be the primary target of any lawsuit, but you would also be named.

However, you might also be able to find a different image of the person in question for which you can get rights more easily. Tread carefully here. Some rights owners are very adamant about their rights and in most places the law is on their side. If a photographer makes a living off of their images they will likely have an issue that must be resolved.

There are some exceptions (fair use). But the journal publisher will know about that if you raise the issue with them.

Answer 3

This may not apply to your situation, but if the 'famous' person is a scientist there may be ways to get a picture, although perhaps not the picture. (This probably should have been figured out earlier - next time!).

The American Institute of Physics has the Emilio Segrè Visual Archives, where they offer some 30,000 photos. Licensing fees for publication seem quite reasonable for journal usage ($35 or less), if they hold the copyright (otherwise you have to contact the entity holding the copyright directly).

Other societies may have similar archives, so check with them.

For now, you need to find the copyright holder and negotiate with them.