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I'm still unclear on how this is a fair use issue. The photographer suggests that he normally allows scientists to use his copyrighted works. That's not fair use, that a license, if an informal one. The use that the journal wishes to make is against the provisions of that license, so the photographer rejects the use. Just as he would presumably reject a use that involved the journal transferring all rights to the company after publication. (This makes me wonder if he ever actually read the copyright agreements which he should have had to sign for his work to be used in publications.)