The NPPA is disappointed to report that this week an intermediate appeals court in Houston, Texas held that a state entity can infringe copyright without being held responsible under the takings clause of the Texas or U.S. Constitutions, “even as the government pirates the entirety of his work.”
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. 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.
“Considered this as our shot across the bow that should encourage others to rise up and take a stand against this ruling,” Jim Olive said to the NPPA on Thursday. “This isn't over nor should it be until we achieve a successful resolution protecting our rights.”
For decades, photographers have faced problems of infringement by state actors who, when challenged with the infringement, assert immunity from suit. Decades ago, Congress passed the Copyright Remedy Clarification Act (CRCA) which said that states could not get governmental immunity from copyright claims. However, several federal appeals courts, including the one that controls Texas copyright claims have held that the CRCA went beyond Congress’s powers and is invalid. The question is currently before the United States Supreme Court in the case of Allen v. Cooper, which should rule on the matter sometime in 2020.
After the University took down the image but refused to pay him, Mr. Olive filed a lawsuit alleging that the state used 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 property, but it applies to all personal property and has been applied in patent and trade secrets cases by some courts.
NPPA working together with ASMP, filed an amicus brief in the case. 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 befall 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.
This week a three-judge panel of the First Court of Appeals in Houston held that “Olive's takings claim, which is based on a single act of copyright infringement by the University, is not viable.”
The Texas ruling affects more than just photographers—it appears that a state entity could engage in broad piracy without being accountable. In sharp contrast, just weeks ago, a federal jury found that the Houston Independent School District was liable for $9.2 million for repeatedly infringing on the copyright of the maker of study guides.
Mr. Olive has the right to file a motion for a rehearing en banc (meaning the entire court rather than just the three-judge panel) as well as seek review by the Supreme Court of Texas.
An author who is in a similar bind has started a GoFundMe campaign to assist Mr. Olive with the cost of his legal battle.