A Houston photographer who had one of his images stolen and used without his permission has become part of a very unusual case, in which the alleged thief is claiming sovereign immunity and the photographer is in turn using a rather unusual legal strategy to combat their defense.
According to Chron, it all started when Houston Photographer Jim Olive's copyright protection service notified him in 2016 of a violation: the University of Houston C.T. Bauer College of Business had been using one of his aerial photos (his specialty) since 2012. He consequently sent the university an invoice: $16,000 for the usage and $25,000 for removing his watermark when the school submitted it to a magazine. The university removed the photo and countered with an offer of $2,500, which it claimed was "fair market value." In turn, Olive threatened to the sue the school, but that proved difficult, since the university is a state school, thereby granting it sovereign immunity from copyright lawsuits. Under Texas law, the Texas Legislature would have to pass a bill specifically permitting him to file a lawsuit against the university.
Instead of going that route, Olive is taking a more interesting approach after being inspired by a similar 1984 case. His lawsuit (for an undisclosed amount) alleges the university's theft qualifies as unlawful taking under the Texas Constitution, which reads:
No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.
Traditionally, this applies to things like real estate, but under a broader reading, could possibly be applied to Olive's photo. If the lawsuit is successful, it would set a precedent that would allow creatives greater latitude in enforcing ownership of their work.
Lead image by Pixabay user qimono, used under Creative Commons.