Photographer Attempting Unusual Legal Strategy in Lawsuit Over Stolen Images, Could Set Precedent

Photographer Attempting Unusual Legal Strategy in Lawsuit Over Stolen Images, Could Set Precedent

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.

[via Chron]

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9 Comments

Alex Cooke's picture

Obviously, if he wins this, I really hope a reporter asks him what he thinks of the university's immunity and he responds: "It's just been revoked."

Mr Hogwallop's picture

They may have double secret immunity....

Gabrielle Colton's picture

Wow this is crazy, suing for infringement is hard enough. Been dealing with it for two years and it just makes you want to give up. Glad to see him standjng his ground

Simon Patterson's picture

Sovereign immunity from copyright? Sounds like a ridiculous arrangement to me! Surely fixing that problem would be the better approach by the wider photographic community there.

Ya never heard of this

Elan Govan's picture

Yes, good on him.

Eric Mazzone's picture

If the state of Texas somehow grants the school immunity, then state then becomes liable for that infringement. I'd name the state as party of the suit. Besides the state can't grant immunity to FEDERAL law, let alone CONSTITUTIONAL LAW which copyright is.

jean pierre (pete) guaron's picture

If that kind of behaviour is the sort of thing that the University of Houston (whether through its C.T. Bauer College of Business or any other part of the University) teaches, then it's a pretty crappy educational institution.

Very creative; however, on one hand, the 5th amendment takings clause only applies to Real Property and not Personal Property like images (intellectual property). On the other hand, there are exceptions that waives 11th amendment's sovereign immunity for States such as if a State acts in Intentional Bad Faith. In this case, if his images were timely registered with the USCO he could argue that the School acted with Intentional Bad Faith when they when they removed the watermark, namely removing thereof in order to avoid paying him. He could possibly have a Willful infringement case based on the Schools willful blindness and reckless disregard for Jim Olive's copyright. For more information please visit, https://www.higbeeassociates.com/practices/copyright-law/