Texas Can Steal Your Photos Without Paying for ‘Takings’: Court

Jun 15, 2019

Michael Zhang

Photographers were just dealt a big legal blow this week after a Texas state appeals court ruled that the state can infringe upon copyright without risking punishment under the state’s or federal government’s “takings” clause.

The copyright infringement battle is being waged between Houston photographer Jim Olive and the University of Houston, a public university.
It all started when Olive, who’s known for his photos shot out of open helicopters, found one of his aerial photos (titled “The Cityscape”) of the Houston skyline being used by the university on its website to promote its C.T. Bauer College of Business. The photographer then sent the university a bill for $41,000 — $16,000 for the usage and $25,000 for removing his copyright credit.

“The Cityscape” by Jim Olive, the photo at the center of this legal battle.

The university quickly took down the photo but only offered Olive $2,500 for the unauthorized usage.
After Olive sued the university, the university pushed for the case to be dismissed because the public institution has sovereign immunity, which protects state government entities from a variety of lawsuits. Olive’s side responded by arguing that the copyright infringement was an unlawful “taking” under the state’s constitution, which prohibits the government from taking private property without adequately compensating the owner.
A lower court previously ruled that Olive can proceed with his copyright infringement lawsuit, but now the Court of Appeals for the First District of Texas has overturned that ruling.
“Even if the government sets itself up as a competitor by producing a copyrighted work, there probably is not good reason to conclude automatically that the copyright has been ‘taken,'” the three-judge panel cites in its ruling. “The copyright holder can still exclude all private competitors even as the government pirates the entirety of his work.”
“[W]e hold that the Olive’s takings claim, which is based on a single act of copyright infringement by the University, is not viable,” the ruling continues. “This opinion should not be construed as an endorsement of the University’s alleged copyright infringement, and as discussed, copyright owners can seek injunctive relief against a state actor for ongoing and prospective infringement.
“Instead, in the absence of authority that copyright infringement by a state actor presents a viable takings claim […] we decline to so hold.”
The NPPA notes that the US Congress passed the Copyright Remedy Clarification Act (CRCA) decades ago to prevent states from having governmental immunity from copyright claims, but some appeals courts have held that CRCA goes beyond Congress’ powers and have therefore struck it down as unconstitutional. The matter will likely go before the Supreme Court (in Allen v. Cooper) sometime in 2020.
“The Texas ruling affects more than just photographers,” NPPA writes in response to this week’s ruling. “It appears that a state entity could engage in broad piracy without being accountable.”
“It just doesn’t seem fair to me,” Olive tells the Houston Chronicle. “With this, they can just run rampant over copyright and take intellectual property with impunity.”

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