dissenting.
I respectfully dissent. The district court, in a carefully crafted opinion reported at 795 F.Supp. 1423 (N.D.Iowa 1991), based the grant of summary judgment on the express authority given by Olan Mills to the investigator to have the photographs reproduced. I conclude that the district court did not err when it decided this issue, and believe that the court’s opinion today fails to come to grips with the thrust of the district court’s reasoning.
The district court’s decision focused on the approval of Olan Mills, but the court today dismisses a -waiver and a “licensing theory ... [as] inapplicable.” Maj. op. at 1348. A brief review of thé record before the district court shows that approval1 was indeed the central issue before the district court and was correctly decided by it.
The letter written by Olan Mills’ counsel in this case to the investigator stated: “[W]e would like you to visit various Linn' Photo retail outlets in the Cedar Rapids area posing as an ordinary customer interested in having an enlargement (for example, 8" x 10" or 5" x 7") made of a ‘family5 photograph. We would then like you to prepare affidavits reporting on your results.” In addition to this general guidance, Olan Mills provided detailed instructions:
1. When seeking reprints, pose as an ordinary customer using your own name. Do not give an address or telephone number unless required to do so. If you can, limit your response to your telephone number (if a different area code, do not give area code). We do, not want to be in a position where another party can suggest that we asked you to lie on our behalf. This could affect your credibility with respect to the entire transaction.
* * * * * *
3. When seeking reprints, the sales person may ask you to sign a form releasing them (sic) from any liability or responsibility for making the reprints. In such a case, sign the form, make sure that you receive a copy either then or when your reprint order is ready for pick-up.
4. The sales person also may state they (sic) they can’t make copies of the photograph with the copyright notice appearing as it is. The sales person may then either (a) request persmission (sic) to cut-off or otherwise remove the copyright notice; or (b) request that you do so. In such a case, give the-sales person permission or follow any instructions regarding how you remove the notice. Make sure that our Report details the conversation on this point and the manner in which the copyright notice has been removed.
795 F.Supp. at 1430-31 (emphasis added).
The court today, in a time of burgeoning dockets, places its imprimatur on this staged behavior, with overtones of misrepresentation, planned for the particular purpose of initiating an infringement lawsuit.
As the district court observed, 17 U.S.C. § 106(1) (1988) gives the owner of a copyright “exclusive rights to do and to authorize” the reproduction of “the copyrighted work in copies.” Thus, the statute specifically gives Olan Mills, as owner of the copyrighted work, the exclusive right to authorize the reproduction of the four photographs. In turn, Olan Mills entered into an arrangement with the investigator and specifically authorized him to pose as an ordinary customer in obtaining an enlargement of the copyrighted “family” photograph, and to sign any document that he was given.
The court’s opinion sets out the permission to copy agreement which the investigator signed with respect to at least three of the four photographs. The agreement specifically stated that the signer owned the photo*1351graph, had not given anyone permission to copy it, requested the copy for personal use, and agreed to hold Linn Photo and its agents harmless from any liability arising from the copying of the photograph.
In light of the record before it, the district court correctly held that the investigator was authorized to order these particular photographs and, as the agent of Olan Mills, did approve the copying, and Olan Mills should not be allowed to repudiate it. As copying without approval is one of the elements of an infringement claim, 17 U.S.C. § 106, the district court did not err in concluding that plaintiffs’ claim failed. The court today simply turns its head from the district court’s painstaking treatment of this issue. Further, the “scenario” it outlines, maj. op. at 1348, characterizes the facts of the transaction between the investigator and Linn in a light far different from the district court’s opinion, so faithfully based on the record before it.
The district court further reasoned that the indemnification provisions in the agreement signed by the investigator with respect to three of the four photographs establish Linn’s right to obtain a judgment of attorney fees from Olan Mills, and that the agreement was not against public policy. I believe that the district court did not err in these conclusions, and I would affirm the fee award based on the reasoning in the district court’s published opinion.
The district court dealt only with the four photographs that had been registered for copyright protection, two of which were presented directly to Linn Photo Shops, and two to Drug Town stores for transmittal to Linn for copying. The district court specifically refused to consider whether there was a systematic course of infringement, finding that plaintiffs had presented no specific evidence with respect to anything other than the four photographs at issue. Olan Mills’ general counsel conceded in his deposition that these four specific cases of infringement were “all we’ve undertaken to prove, for purposes of this lawsuit.”
The court today also reasons that the investigator’s action in this case is indistinguishable from investigative schemes that have been upheld in other copyright cases. See RCA/Ariola Int’l, Inc. v. Thomas & Grayston Co., 845 F.2d 773 (8th Cir.1988); RCA Records v. All-Fast Sys., Inc., 594 F.Supp. 335 (S.D.N.Y.1984). There are several shortcomings with this approach. Neither of the cases referred to involved a written consent signed by the investigator. Indeed, the district court based its reasoning on this distinction. Neither case involved evidence about the instructions given to the investigator. The investigators in those cases were not authorized by the copyright owners to consent to the copying, and did not, in fact, consent. The investigators either performed the copying themselves, or simply presented a tape to a store employee for copying. RCA/Ariola, 845 F.2d at 777; RCA Records, 594 F.Supp. at 337. Moreover, both cases involved copyrighted recordings and copying machines prominently displaying decals expressly warning against the copying. RCA/Ariola, 845 F.2d at 777 & n. 4; RCA Records, 594 F.Supp. at 337. Finally, and more significantly, in neither case was the activity of the investigator at issue, or passed upon by the court. Thus, the investigative cases relied upon by the court today give it no support.
The court today, in reviewing the parties’ summary judgment motions, essentially ignores the record before the district court and the district court’s reasoning in support of its carefully crafted order. The court errs in reversing the judgment of the district court.
. The district court pointed to Olan Mills’ concession that on some occasions it permitted portrait subjects to obtain reproduction from outside sources, particularly after the passage of two years. 795 F.Supp. at 1429, 1436.