Olan Mills, Inc. v. Linn Photo, Inc., 23 F.3d 1345 (8th Cir. 1994)
Background. Many churches prepare pictorial directories of church members. These directories are an excellent way for members to get to know other members, especially in larger congregations. Often, an outside company is used to make all the appointments and arrangements, take the photos, and prepare the directory—at no cost to the church. Individuals and families that show up for their photo session typically are given a free copy of the photo that the company selects for the church directory. The company is paid by additional orders it receives from individuals and families.
A potential problem. Some members attempt to save money by taking their free photo to a local film developer for additional copies. Other members purchase a package of photographs from the church directory company, but later (in some cases many years later) want additional copies. Not knowing how to contact the company, they take their photographs to a local film developer for additional copies. Do these common practices violate the copyright law? This question was addressed directly by a federal appeals court in a recent case.
The court’s ruling. Olan Mills operates more than 1,000 portrait studios throughout the United States. It took a number of family photographs of one client, and placed a copyright notice on each photograph. A local film developer was asked to make copies of some of these photos, and it agreed to do so despite the fact that the photos all contained a copyright notice showing Olan Mills as the owner of the copyright in the photos. However, the film developer had the customer sign the following statement:
This is to state that I am the owner of this photograph and have not given any one else permission to copyright this photograph. I am submitting it to [the film developer] for a copy at my request. This copy is for my personal use, and I agree to hold harmless [the film developer] or any of its agents from any liability arising from the copying of this photograph.
Olan Mills later sued the film developer for copyright infringement. A federal appeals court ruled that the film developer had violated the copyright law. It noted that Olan Mills retained the copyright in all of its photographs, and that one of the exclusive rights of a copyright owner is the right to make copies. The court further noted:
A purchaser may own a copy of a photograph, but absent specific arrangements to the contrary, the copyright remains vested in the author of the photograph, here Olan Mills. Because the photographs in this case were clearly marked with a copyright notice [the film developer] could not reasonably rely on its indemnification agreement.
Relevance of the case to church treasurers. Has your church ever used an outside company to prepare a church pictorial directory of your membership? Are you considering doing so in the near future? If so, here are some important points to keep in mind:
- Copyright ownership. In many cases, the copyright in any photograph will belong to the photographer. Often, the photographs will contain a copyright notice—although this is not a legal requirement in order for the photographer to have copyright ownership of the photographs.
- Notice to members. Members often do not understand that the copyright in their individual or family photograph belongs to the photographer. They fail to distinguish between ownership of the photograph and ownership of the copyright in the photograph. If the photographer retains copyright in the photographs, then members may not make copies without the photographer’s authorization. And this is true for the full duration of copyright protection—the life of the author plus 50 years! If the copyright is owned by a company, the copyright will last for 75 years from the date of publication.
Key point. If the photographer retains copyright ownership in the photographs, the church should consider informing church members of this fact at the time the directory is being produced. The photographer will also mention this fact, at least in the fine print of an “agreement” signed by members. But members often are not aware of this fact. The church can help to avoid misunderstandings, and potential copyright infringement, by informing members in clear language that they do not have the legal right to make copies of their photographs without the photographer’s permission.
- Negotiation. Many church leaders, if they thought about it, would want members to retain greater control over their family pictures. The problem is that no one considers this issue when the church is contacted by a church directory company. The point to stress is this—the church is in the driver’s seat and need not enter into an agreement with anyone that is not desirable to itself or its members. Make this a point of negotiation. Tell the directory company that you do not want your members to be guilty of copyright infringement if they make duplicate copies of their photographs in the future. There are many church directory companies, and you have the right to use one that will work with you.
This article originally appeared in Church Treasurer Alert, February 1995.
