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Paging @Kingofthedead:, since you were the uploader. The infobox photo claimed as fair use, File:Benny Benson.jpg, is the same image found on Commons as File:Benny Benson holding the flag of Alaska that he designed.jpg, from the same source, with a claim that it was published between 1926 and 1977 without a copyright notice. Commons is full of potential copyvios of photos which were taken X number of years ago with no evidence that they were published at that time. This is because Commons lacks the warm bodies willing to do such drudgery and many classes of photos escape scrutiny. There's insufficient evidence that the photo was published without a copyright notice. Here's where it gets sticky. I have a photo of Benson which I scanned from a 1973 publication which lacked a copyright notice. I haven't uploaded it for multiple reasons, lack of time being the biggest one. Also, I use GIMP to process photos and it doesn't handle circular photos without a certain amount of wrangling. Perhaps more importantly, it depicts Benson in the later part of his life. If I were to upload this image for the infobox and the claimed licensing on the Commons image isn't valid, I would think this image still qualifies as fair use due to historical importance. I've had little desire to bother with fair use images after having been burned one too many times, so I don't know if there is a higher bar with fair use for historical importance. Any assistance here would be appreciated. RadioKAOS / Talk to me, Billy / Transmissions 06:43, 9 November 2021 (UTC)[reply]
RadioKAOS, if Commons contains a freely licensed image of this individual, we cannot use nonfree images of this individual instead. If you feel that the claimed license is not correct, you can handle that at a Commons deletion request, but until and unless Commons were to agree and remove the file (and that's the only one of him, and given your possession of another one, it sounds like it's not), the presence of a free image automatically renders any nonfree ones replaceable. So, it will not be possible for the nonfree images to remain. SeraphimbladeTalk to me07:51, 9 November 2021 (UTC)[reply]
As Seraphimblade posted above, a non-free image isn't going to be considered OK to use per WP:FREER if there's a free equivalent image that can either be found or created to serve the same encyclopedic purpose. Moreover, a free equivalent image doesn't mean a free version of the non-free image you want to use; it just has to be capable of serving the same encyclopedic purpose as a non-free one. You could try to argue that an non-free image is historic, but this can be tricky per WP:ITSHISTORIC and WP:NFC#CS because generally only images which are themselves subject of sourced critical commentary in reliable sources tend to be considered historic; in other words, an image simply being taken a long time ago or showing how someone/something looked at a particular point in time isn't (at least not in my opinion) automatically a "historic image" simply for that reason alone. In this case, it seems even harder to try and argue that because the essentially the same image is what was uploaded to Commons and Wikipedia's non-free content use policy is always going to have us use the Commons image in such a case. If you feel the Commons image is a copyright violation or otherwise unaccpetable for Commons for some reason, you can ask about it at c:COM:VPC. Perhaps your hunch is right and the file will be nominated for deletion. One thing to keep in mind though is that a photo taken in 1927 could also possibly be {{PD-US-not renewed}} if its copyirght wasn't renewed before 1963. This means that even if the photo isn't {{PD-US-no notice}}, it might still be PD for another reason. This could be a case where all that is needed for the Commons file is a change of licensing and that it doesn't actually need to be deleted. -- Marchjuly (talk) 07:44, 10 November 2021 (UTC)[reply]
