Bible Copyright Question Creates Confusion for Drugstore

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Three weeks ago, Kelly Taylor of Gulport, MS attempted to print a few pictures at her local Walgreens featuring quotes from the Bible and “an artist’s graphic design featuring images of the sky, clouds, and stars.”[1. Jana Winter, Chain Cites ‘Copyright Law’ in Refusing to Print Images of Bible Verses, Woman Says, FoxNews.com (Feb. 26, 2014), http://www.foxnews.com/us/2014/02/26/chain-cites-copyright-law-in-refusing-to-print-images-bible-verses-claims-woman/ (internal quotations omitted).]   Taylor was shut down by Walgreens staff, citing that her attempted order may be in violation of copyright, so it could not be processed.[2. Id.]

FoxNews.com, the originating outlet for this story, incorrectly states that copyright law has “never applied to the Good Book.”[3. Winter, supra note 1.]  The article goes on to cite copyright law as “typically covering books for the life of the author, plus 50 years,”[4. Id.] which is correct for works created before 1978, but fails to acknowledge when works created in or after 1978 maintain copyright protection for “a term consisting of the life of the author and 70 years after the author’s death.”[5. 17 U.S.C. § 302(a) (2012).]  Additionally, depending on who authored the work, the copyright can endure for “a term of 95 years from the year of its first publication, or a term of 120 years from the year of is creation, whichever expires first”[6. 17 U.S.C. § 302(c) (2012).] if the work is deemed a work for hire.[7. See 17 U.S.C. § 201(b) (2012) (“In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title . . .”).]  If the translation was commissioned by a corporation after 1978 as a work for hire, the copyright could likely continue until 2098.

The Bible was first translated into English in a handwritten manuscript circa 1380 A.D. by John Wycliffe, an English philosopher and translator.[8. Sir Frederic G. Kenyon, English Versions, in A Dictionary of the Bible (James Hastings ed. Charles Scribner’s Sons of New York 1909), available at http://www.bible-researcher.com/wyclif3.html (“The New Testament is generally attributed to Wyclif himself . . .”).]  As time went on and the English language evolved into what is closer to our vernacular today, the Bible went through other translations.[9. See Kevin Knight, Versions of the Bible, Cath. Encyc. (2009), available at http://www.newadvent.org/cathen/15367a.htm.]  While the original text of the Bible was always in the public domain as a work published before 1923, newer versions may not be.[10. See Peter B. Hirtle, Copyright Term and the Public Domain in the United States, Cornell Copyright Info. Ctr., (Jan. 1, 2014), http://copyright.cornell.edu/resources/publicdomain.cfm (noting that works published prior to 1923 are in the public domain).]  The article does not state which version Taylor borrowed the language from, however, there is a great likelihood that the translated text used was still under valid copyright.  Translations cost a considerable amount of money, time, and effort from multiple parties.[11. Chris Salzman, Why are Modern Bible Translations Copyrighted?, Bible Gateway (June 3, 2010, 4:50 PM), https://support.biblegateway.com/entries/187525-Why-are-modern-Bible-translations-copyrighted-.]  Translations are considered a derivative work, but if the original work is in the public domain, the translation can usually meet the originality requirement to make the work eligible for copyright.[12. Translation, USLegal, http://copyright.uslegal.com/enumerated-categories-of-copyrightable-works/translation/ (last visited Feb. 27, 2014).]

As a former CVS photo technician, I can’t personally speak to Walgreens’ company practices and policies regarding copyright and photos (although they appear to be analogous).[13. Compare Copyright Policy, CVS Pharmacy, http://www.lifepics.com/marketing/terms_and_conditions/copyright.pdf?_ga=1.72336275.1222564781.1393506729 (last visited Feb. 27, 2014) with Copyright Policy, Walgreens, http://walgreens.custhelp.com/app/answers/detail/a_id/260/~/copyright-policy (last visited Feb. 27, 2014).]  From my own experience at CVS, technicians were trained to ensure that photos were not infringing another’s copyright.  Specifically, we were told to disallow customers to make copies of proofs of professional photographs, as those were the rightful intellectual property of the photographer until the consumer completed the purchase.  This leaves the company potentially liable to suit, as Walgreens was obviously concerned about, in the end having Taylor to sign a waiver[14. Very likely the waiver found at the following source: Walgreens Customer Copyright Declaration Form, Walgreens, http://www.walgreens.com/images/pdfs/photo/copyrightform.pdf (last visited Feb. 27, 2014).] to receive the pictures, which were given to her free of charge.[15. Winter, supra note 1.]

Fair use comes into play here as well.  Fair use is a defense to copyright infringement that allows the would-be infringer to use brief excerpts of the work for a “fair” purpose, such as reviews, news reporting, teaching, and research.[16. 17 U.S.C. § 107 (2012).]  Since Taylor was planning to use the photos in her Bible study group, seemingly not for any type of commercial purpose,[17. Winter, supra note 1.] her use likely falls under the Fair Use defense.

However, Taylor says that she is “praying that Walgreens learns that the Bible doesn’t belong to anyone, it belongs to everyone.”[18. Id.]  While Taylor is certainly well within her First Amendment rights to express her personal religious beliefs publicly, translated language copied verbatim from a copyrighted work in certain circumstances does not belong to everyone, but instead belongs to the copyright holder – at least until it enters the public domain.

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