I would like to use, in a journal manuscript, a figure for which the original source (a website) no longer exists. What can I do?

I found the figure in a Ph.D thesis, the author of the thesis is however not the copyright holder of the figure. But the website of the figure's reference no longer exists, and is also not saved in the internet wayback-machine. I have a copy of the figure, but i do not see any possibilities on how to ask permission to use the figure.

Any suggestions on how to proceed?

I don't want to make this question too case specific, because I think it is a problem that could occur often, in different countries and settings. But of course I would like a practical resolution: the specific source indicated in the Ph.D. thesis is A2Engineering.com retrieved march 2010. I already looked a lot on google, also using reverse image search, and I could not track the copyright holder, or their nationality or country of residence. The difficulty is that there are many companies with similar names, but their field of interest does not seem to match with content of the figure. Is there any chance that i could still use it, based on the idea of "fair use"?

  • The question as it stands can not be answered untill you add the following information: Who had the copyright and what country were they legally based in. – Bas Jansen Jun 26 '17 at 13:07
  • @BasJansen: If the website where the figure was originally taken from is gone (and with it, probably all traces that lead to the original author), how is the OP supposed to know who was the original copyright holder and what country they were from? As it stands, I read the question as: "I want to use possibly copyrighted resource X, but the copyright holder of X cannot be determined. How to proceed?" – O. R. Mapper Jun 26 '17 at 15:37
  • How important is this figure? Are you able to reproduce it or do you really truly need the original figure? – Bryan Krause Jun 26 '17 at 17:15
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    I will survive without using the picture, but since the situation can occur to other people to. I was hoping that some one could give some more insight on the use of the "fair use" clause of copyright, for such a situation. (even in different countries). Some times when an old book or conference paper is not accessible, people also use secondary sources in their references. Maybe something similar procedure could apply to figures? I am not worried about getting sued for using the figure. i just wanted to know what proper "research" ethics are in such a case. – Hjan Jun 27 '17 at 12:16
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    @O.R.Mapper I said could, and the name that the OP edited into the question gives some indication already as there currently are two companies using that name (UK, India) but both seem to be to recent to be the potential copyright holder. Obviously, if the name was something like you mentioned then it wouldn't work (hence again, the could). – Bas Jansen Jun 29 '17 at 12:18

We have a serious problem, worldwide, with copyright now. To protect yourself and your reputation, I think you are better to assume that you cannot use the figure or a recreation of it unless and until you can determine positively that you can. Copyright differs greatly by country now. Unfortunately many works have been abandoned by their authors but copyright law generally makes no provision for that. Fair use and "use for research" differ greatly by place.

My suggestion is to give a reference to the original, even if it cannot be found and to create your own figure separately from this one, using, if possible, different data. Don't try to make it similar. Don't try to disguise the original. Make a new figure that illustrates the point you are trying to make in your own work.

I would do something like presenting my own figure illustrating the point I'm trying to make and the note that author X made a similar point at Reference Y, including illustrative figures (without reproducing them). Your readers are informed. The previous rights holder is respected. You have done the best you can do given (possibly unreasonable) restrictions on sharing.

Whether or not you would be "caught" or "challenged" in reproducing something without permission, your own reputation can suffer. It is better to be conservative here.

But it is also better to use whatever position you have to work toward more sensible copyright rules that deal with abandoned works and with scholarly research without having the original rights-holder suffer.

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As many commenters have pointed out, I would recreate the figure and state something to the effect of "similar to source X" and include a citation.

If you've got through all reasonable steps to get permission, this should be adequate - you're providing proper attribution and not claiming it as your original material. While this clearly meets the standard in my country, I acknowledge it may be different from location to location.

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  • spirit of which law? Half the problem is that this varies considerably from country to country. – Fábio Dias Jul 1 '18 at 12:58
  • @FábioDias, thank you for that. I've make adjustments to reflect your point. – SecretAgentMan Jul 2 '18 at 13:48

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