FELA! on Broadway's defense only has merit if Nance was aware that the photograph was used in the show two years ago. However, the article mentions the June 27 performance specifically, so perhaps that is when Nance attended the show and became aware of it?
I'm sure they wouldn't have used the photo if they didn't think they had consent. I predict they'll replace the photo and that will be the end of it. Nance won't get any money unless she can prove that FELA! on Broadway knowingly used the photo with denied approval.
"The Spectacle has, indeed, an emotional attraction of its own, but, of all the parts, it is the least artistic, and connected least with the art of poetry. For the power of Tragedy, we may be sure, is felt even apart from representation and actors. Besides, the production of spectacular effects depends more on the art of the stage machinist than on that of the poet."
--Aristotle