As mentioned in a previous post all the images I have reproduced directly I have obtained the permission of the author or the estate. I noted that where you can get in touch with a living photographer everything is easily sorted but for the estate of a deceased photographer that tends to be a different matter.
For some research regarding the context of a picture I wanted to use an image from W. Eugene Smith’s photo essay Country Doctor. After quite an amount of detective work I mailed the agency that worked on behalf of the Estate of W. Eugene Smith and received, for me, the following disappointing reply:
“The Estate of W. Eugene Smith requires that we charge a minimum of $300 per image for any reproduction of his work. Under that restriction, we are not able to honor your request for unpaid use of the material. Over the years they have had too many requests for free use of their material for academic purposes and minimal payment offers for the same purpose. They will not change their policy for individual requests“.
This reply raises a number of points:
- firstly it is in the right of any owner of an asset to get a return on that asset. In this case Smith’s body or work there is no point owning it if it is not going to generate an ongoing revenue stream.
- secondly it looks like there has been some history or previous issues where the Estate has said enough is enough and here is our policy from that point on.
- thirdly it does seem a shame that key works are not being allowed for use for educational purposes.
The irony is that my link to the host image most likely has not paid the appropriate fees yet there it sits on the internet. More than likely fair usage for educational purposes would be cited if challenged but that would not hold because the Estate have such a restricted policy. Having done quite a bit of reading on the subject most articles end up with a disclaimer that reads some thing like “To avoid problems, if you are in any doubt, you are advised to always get the permission of the owner, prior to use”  which basically translates as Permission to Reproduce: If In Doubt, Don’t.
The interesting point which I will follow through is that as the picture was published as part of a photo essay in LIFE magazine, LIFE own the copyright of the photo and combined text. I may well get in touch with them to see if I can reproduce the full page which will also contain the photograph. I’ll see how that goes.
 (2004) Copyright Law fact sheet P-09 : Understanding Fair Use, UK Copyright Service [available online]
https://www.copyrightservice.co.uk/copyright/p09_fair_use [Last Accessed 28th Oct 2015]