:Thanks for that information, and I see you also added this to the WP:PUF page. 

 :However, in regards to photographs, the image is not your own work unless you were the actual photographer who originally took the picture of the subject.  Scanning an existing photograph taken by someone else, or taking a picture of a picture someone else took, does not (legally speaking) grant you the right to call the image your own work, nor to publish it under a free use license.  Those rights remain with the original photographer, or with the subject of the photograph (or his heirs) depending on the situation. 

 :In order to legally call the image "free use", the copyright holders (which in this case would apparently be the heirs of Mr. O'Donnell) must explicitly license the image under a free use license.  To do this, the copyright holder must contact the Wikimedia Foundation and explicitly provide their permission for the image to be released under a free use license. To do this, they need to follow the steps at COM:OTRS. 

 :If you cannot contact them or if they are unwilling to do so, the image might still be eligible for use on Wikipedia (but not for uploading to Commons) under a free use rationale.  In that case, you'll need to follow the steps at the FUR page to add a rationale for use to the image page. —