Mr. Bodner ran a high quality copy shop/photo frame business. In this context, he carried a stock of gedolim photos, which he offered for sale, framed or unframed.
Before Pesach, Mr. Bodner received a donation brochure from the local kollel. “Anyone who donates $360 will receive a free 8X10 photo of Rabbi Yaakov Kamenetsky, zt”l, who delivered occasional shiurim at our kollel,” the advertisement read.
Mr. Bodner was a regular supporter of the kollel and happily donated $360. Two weeks later, he received in the mail the photo of Rabbi Kamenetsky. He had other photos of Rav Kamenetsky in his shop, but was taken by the inspirational glow captured in this particular photo.
He checked the photo carefully and found no indication of any copyright on it. It was simply a good shot that someone from the kollel had taken.
Mr. Bodner decided to make a few copies and offer them for sale in his shop for a small profit. They sold out very quickly. He began offering them through mail-order service, for the small price of $25.
One day, the administrator of the kollel, Rabbi Taub, chanced on Mr. Bodner’s store. He noticed that Mr. Bodner was selling the photo the kollel had offered its donors. “Where did you get this photo?” he asked Mr. Bodner.
“I had received it from you when I donated $360 before Pesach,” replied Mr. Bodner. “I have other photos of Rabbi Kamenetsky, but this one was so beautiful that I decided to sell it.”
“That was our photo,” said Rabbi Taub. “We used it to encourage donations to the kollel. By selling the photo you’re discouraging people from donating and causing us a loss.”
“It’s just a photo,” said Mr. Bodner. “Anyone can take a photo and sell it. You didn’t even copyright the photo before sending it out. I wouldn’t have done it otherwise.”
“You’re simply making a fast buck off of our efforts,” said Rabbi Taub. “That’s unethical.”
“People who want to donate will give anyway,” said Mr. Bodner. “Why can’t I also gain from distributing the photo?”
“We appreciate your support of the kollel all these years,” said Rabbi Taub, “but we can’t allow this. Are you willing to meet with Rabbi Dayan about it?”
“Absolutely,” said Mr. Bodner. “I wouldn’t want to do anything unethical.”
They arranged to meet with Rabbi Dayan. “I received a photo of Rav Kamenetsky from the kollel,” explained Mr. Bodner. “There is no copyright indication on the photo. Can I copy the photo and sell it?”
“The halachic application of copyrights is a very intricate issue,” said Rabbi Dayan. “It requires trying to fit a relatively new notion into classic halachic concepts and taking into consideration varying issues of minhag hamedina and dina d’malchusa. There are many halachic approaches to the topic.”
“What is one approach to our question?” asked Mr. Bodner.
“Your question is addressed in Emek Hamishpat, Zechuyos Yotzrim [36:7,19,25] by Rabbi Yaakov A. Cohen, shlita,” replied Rabbi Dayan. “He draws a distinction between commercial use that will impinge upon the livelihood of the original photographer and use that will not.”
“What is this based on?” asked Rabbi Taub.
“Rabbi Cohen bases this on a ruling by Rabbi Y.H. Sonnenfeld, the former chief rabbi of Jerusalem,” answered Rabbi Dayan. “He addressed the question of whether a person has a legal right to prevent someone from photographing him. Rav Sonnenfeld concludes that ‘image’ alone is not a possession, so that photographing someone is not taking property from him. [Of course, if the particular photograph insults the person, there is a prohibition ona’as devarim – verbal torment.] Other authorities, like the Rogotzover, do not allow photographing against one’s will.”