Old Photo copyright

Question

Almost finish with writing a business book - and am going through some of the illustrations to make sure I have copyright permissions and attributions. Here's a problem I've encountered:

There are a few photos that are from World War 2 era (battlefield photos in France, for instance), that are generally very common on the web - and I cannot find any attribution - let alone license information for these photos. Another photo or two is very specific (Cargo Cults) and the few photos available also have no source or attribution - but are used just about everywhere.

I'm pretty good at searching, and diving deep. I've also checked AP, Getty images, other commercial sites and also the Smithsonian archives. Nothing.

So - what do I do? I don't want to get sued after the book is published, or charged extortion after-the-fact, or worse, have to reprint the book without the photos.

REWORDING the main question for clarity (and so others don't think I am asking for legal advice:

My question is not generally not "how can I search online to find the original image".

The question is - how can I properly use and attribute a photo inside my book - when no official attribution or copyright can be found?

Note: 1) this is a writer's question tagged under the "copyright" tag. in all of stack exchange there is no place more appropriate than here.

Answer 1

The fact that you haven't managed to determine who holds the copyright does not per se mean that you can't be sued for infringement. Given the age of the items, it is possible that they are no longer protected, as specified in 17 USC 304 depending on the country where the right exists and details of registration.

Assuming that the copyright is still valid and the rights-holder sues you, then you might attempt a fair-use defense. This Q&A summarizes the legal elements of that defense. It's unclear how you would fare w.r.t. the purpose and character element: being free and educational is seen as good. The nature of the work favors fair use (news item), but the extent element doesn't ("extent" could be favorable if you take only the eyebrows, but you're basically copying the whole thing). The 'effect on market' concern probably favors fair use, since the use wouldn't apparently undermine a market for the original work (indeed, there may be no such market, but it's never safe to assume). And finally, there's the mystery factor of "transformativeness". The fair-use index run by the copyright office can help, since you can read summaries of cases where fair use was found versus not found, to try and determine what constitutes "fair use".

Answer 2

Have you tried searching by image?

https://www.google.com/intl/es419/insidesearch/features/images/searchbyimage.html

Answer 3

It sounds as if you are asking 2 questions:

1. Is it legal to put it in a book and
2. How do I cite or reference this photo of unknown provenance on the web?

For 1)it probably counts as fair use to have a small reduced quality (or reduced size) image in the book itself:

https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html

http://fairuse.stanford.edu/charts-and-tools/#digital_images

http://librarycopyright.net/resources/fairuse/

For 2), the answer is surprisingly simple. You can host the image on a web page you run, and then remove it if anyone comes complaining. (That is how a lot of websites and blogs operate; promise to take it down if asked).

Another option is to use a service like Perma.cc or webcite to create a permanent/enduring URL to a third party web page which you can update over time if the web reference goes bad.

Finally, I had a situation which was roughly analogous to this. I published a fiction ebook about old cars, and as an interesting diversion, I scoured the web for photographs of many of the cars referenced in the ebook. Ideally I would have liked to get clearances for the photos so they could be included in the book. I quickly realized that this was impossible. Some photos were on wikipedia, but I often needed a specific color of car. The best way to do this was to google the car's year and model and choose one of several photos used for ebay auctions, antique car events, etc.... Many of those photos were improperly cited and web pages often lacked contact information.

(The URL I made is here: http://www.ghostlypopulations.com/2012/02/the-cars-of-hanger-stout-awake/ ).

I had a lot of fun making this photo page. I realized that standards for copyright infringement differ for blogs and ebooks. I did this page just on a lark. But if I would want it for the book itself, I would have been a lot more diligent about getting permissions.