When a ND picture qualifies as fair use, the reason why you can maintain the
existence is that it is fair use. The fact that it is also available as a ND
is irrelevant and would be a reason for deletion.
I think this can be a very important point and possibly the solution for
the projects in languages which are centered in countries which do not
allow fair use. Projects would be able to use less free media if these
are compatible with the fair use policies and still be compliant with
the national laws.
Marco (Cruccone on it.wikipedia)