This week the National Press Photographers Association and the American Society of Media Photographers, joined by four visual arts organizations, weighed in on a “takings” case in support of a photographer and his battle against the state over an infringed photograph.
The case began when Texas photographer Jim Olive discovered that the University of Houston was using one of his aerial photographs for marketing purposes without permission. But when Olive asked the University to pay for the use, they refused and told him they were shielded from suit because of sovereign immunity, which protects state government entities from many lawsuits. NPPA has seen other state entities adopt a similar strategy — claiming sovereign immunity when they are confronted with infringing the copyright of a photograph or video. The sovereign immunity/copyright infringement problem is well known in legal circles and there have been various attempts to resolve the problem in the courts and through legislation. In 2000, the Register of Copyrights testified about the problem of state governments infringing copyright and then claiming sovereign immunity and hinted that “an action for the uncompensated taking of private property” might be a solution, but noted that it was untested.
After the University refused to pay him, Jim Olive filed a lawsuit alleging that the state took his property without just compensation, known as a “takings.” The Takings Clause is typically thought of in terms of the government’s seizure or destruction of real estate, but it applies to all personal property and has been applied in patent and trade secrets cases. At trial in the Jim Olive case, the University of Houston filed a motion asking the court to dismiss the case for lack of jurisdiction, which the trial judge denied. The denial of dismissal is now on appeal in the Court of Appeals for the First District, in Houston.
NPPA’s attorneys, Alicia Calzada and Mickey Osterreicher, working together with ASMP attorney Tom Maddrey, filed a friend-of-the-court brief on Wednesday, May 15, 2019, in support of the photographer. The brief was joined by the North American Nature Photography Association, Graphic Artists Guild, American Photographic Artists, and Professional Photographers of America. The visual arts associations explained the devastating consequences that could come to the creative community in Texas and nationwide if state-sponsored copyright infringement remains unchecked. The brief further argued that the state’s position attempts to set up a free collective licensing scheme for its own benefit, in violation of the federal government’s exclusive domain over copyright. The brief also outlines how the University’s claim that the copyright infringement was merely negligent should fail because all contemporary photographs are presumed copyrighted.
Additionally, the visual arts groups explained the dynamics of the photography licensing industry, and how the value of a photograph can be impacted negatively by unauthorized uses, including uses that interfere with or prevent exclusive licenses. Finally, the brief argues that if a state uses a photograph without permission, it is a violation of the First Amendment right against compelled speech.
A copy of the brief can be found here
The case docket can be found here
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