To Copy or Not to Copy?

Scenario: 

Pre-existing training materials are being incorporated into a corporate elearning module.  The subject matter expert (SME) wants to include an anatomical drawing of the neck muscles.  There is no attribution or permission relating to the drawing in the material supplied.

Considerations: 

Whole works should only be included if they are: in the open public domain, provided under a suitable creative commons license or with permission for commercial use, or if permission has been obtained from the copyright holder.

The scenario unfolds:

Examination of the illustration shows the name “F. Netter”.  A quick online search identifies the signature as that of Frank Netter, a famous  American surgeon and medical illustrator, also known as the Michelangelo of medicine. 

While Netter died in 1991, individual illustrations, including the one of the neck muscles, are available for purchase over the internet (thus in a timely manner) and at what would be regarded as an ordinary commercial price.  Unfortunately this still places the illustration well outside the modest budget for your project.

You advise that the illustration cannot be included.  The SME is dismayed and argues that the material will only be seen by a small number of people, all employees, as access to the learning site hosting the module is password protected.  No revenue is collected from the learning modules and they are for the sole purpose of staff education.

You maintain this does not abrogate the responsibility to comply with copyright requirements regarding a whole work, where the material (in the form intended for use) is available for purchase in a timely manner and at an ordinary commercial price.  Begrudgingly the SME agrees to source a different illustration.  

Gray, H. (1918). Anatomy of the Human Body.   Philadelphia: Lea and Febiger

The resolution:

An illustration was sourced from the 20th edition of Henry Gray’s classic textbook,  Anatomy of the Human Body.  While more recent editions are still copyright protected, the 1918 publication is now in the open library.    

This image was supplemented with a photo of the neck of a staff member, with consent obtained from both the staff member and the photographer.