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Imagine writing an article about a convicted criminal, only to discover that there are no photos of the individual that are in the public domain. You find a couple photos in magazines, but your requests for permission to use them go unanswered.

Would the fair use doctrine allow one to use such a photo without permission, or are there too many variables involved to make such a blanket assessment?

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Impossible to say, and highly dependent on the jurisdiction.

  • Privacy laws may or may not apply to the publication of pictures, even for convicted criminals. There are jurisdictions where you cannot even use the full name amd a public domain photo from another context.
  • The magazines have likely sourced the image from agencies or photographers, which means they cannot license you, and they may be too busy to answer requests from people who do not understand that much. (This might look different if the images are a couple of decades old. There were more staff reporters than there are today, in some parts of the world.)
  • The presence or absence of other images of the same subject in the public domain should make absolutely no difference in this case. Either the photographer has a right to the picture, or not.

'Fair use' does not mean 'it is unfair that I cannot find a photo, so I'll use this one.'

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