A groundbreaking court ruling has been overturned in Texas, and the ramifications could affect thousands of Texas creatives and their copyrighted property.
A Stolen Image
Fstoppers first reported on this case back in January of 2018, when Jim Olive began his legal battle with the University of Houston (UH) over an image that Olive took and owned the registered copyright to. Through a paid service that he uses to track unauthorized use of his images on the web, Olive discovered that The University of Houston’s C.T. Bauer College of Business was using the image, an aerial view of the Houston skyline, shot from a helicopter, without his permission. As far as he could tell, the university had been using the image for approximately four years. They had removed his watermark from the image, and had even gone so far as stripping the metadata. “It’s willful at that point,” says Olive, of the blatant misappropriation of his image by the university.
The image at the heart of the lawsuit. Photo taken by, and used here with permission from, Jim Olive.
Olive reached out to the university repeatedly, and was repeatedly ignored. His calls went unreturned. He sent them an invoice, which they never paid. He says his representative even physically went to the university to speak to someone about the issue, whereupon he was asked to leave the property and never return. Olive finally sent the university a bill for $41,000 for the use of his image. This amount included $16,000 in usage fees, and $25,000 for removing his watermark and failure to give him credit. The university in turn offered him a sum of $2,500, which they considered to be “fair market value” for the image.
A Photographer Fights Back
Olive disagreed. And so he began to pursue legal proceedings against UH. It wasn’t out of greed; Olive knew that the amount he was pursuing would not even cover all the time and legal fees he would incur. And he is not a selfish man. He has long donated his time and photography skills to different coastal and environmental charities, and even has his own 503c charity, The Christmas Bay Foundation, dedicated to preserving natural resources in the Galveston area. But Olive wanted justice, because he could not sit back and allow the government to legally steal from him, or any other creative who might come along later.
“To my understanding there are 17 other photographers out there who have had their images appropriated by the state without compensation,” says Olive. State entities have been able to get away with this because they are protected by something called Sovereign Immunity, a doctrine which in a nutshell says you can’t sue the government or any of its entities. The University of Houston happens to be a state run university. Therefore, Olive would not be able to sue using the normal accusation of copyright infringement. Instead, he decided to take a different route.
Olive filed in state district court, claiming that what UH had done by using his image was “unlawful taking.” In the Texas State Constitution, unlawful taking , or simply “taking”, is a rule which prevents government entities from taking your property without sufficiently compensating you for it. It’s a law normally cited when the government wants to take things like part of your farm to build a new highway.
Though unusual, Olive’s takings case was not entirely without precedence. Another well-known Texas photographer, David Langford, first pursued a takings case against the state of Texas when one of his images appeared on Texas motor vehicle inspection stickers in certain counties. It seems a convict in the Texas prison system took the image from a magazine and used it to create a design which was printed on 4.5 million of the stickers. Langford later reached a settlement agreement with the state.
Promise, Then Disappointment
Although Olive’s case seemed unorthodox, it looked like he was breaking ground. In 2018, a state district court judge rejected the university’s claim of sovereign immunity, and ordered that the university could indeed be sued under the taking law. It looked like Olive was finally going to see his big day in court after all. Now a year later, things have taken a turn.
Last week, The Court of Appeals for the First District of Texas reversed the district court’s ruling, saying that Olive is not entitled to sue under the taking law. Olive still has not been paid for any of the use of his image by the university. Furthermore, he has been ordered to pay court costs on behalf of UH.
The ruling is just another hard hit to the rights of creatives whose copyrighted work has no physical value in the eyes of the government. In essence, this ruling is stating that copyrighted digital property is not really “property”, and does not fall under the taking rule. Any state entity can help themselves to your copyrighted intellectual property, and there isn’t a damn thing you can do about it.
The current turn of events has been a big blow for Olive and his copyright cause, understandably. At this point, he’s unsure how much further he will go. Six different groups with an interest in protecting copyright have reached out to help with the case by working together on a brief that represents the interests of many thousands of photographers and other creatives. We definitely have not heard the last of Olive or of this case.
Hope for the Future of Copyright Law
As for his outlook on how things have turned out, Olive is not one to wallow in the negative. Referring to the district court who initially permitted his pursual of the takings case, Olive says, “this was the first time in Texas legal history that a district judge has approved a case to go forward where someone was suing a state entity.” That’s no small thing. As Olive says, the state has always hidden behind sovereign immunity. And Olive has high hopes that awareness will come from his fight, if nothing else.
“I’m hoping that one thing that will come out of this, is that we may be able to get the state to meet about it and discuss it through a panel or committee, and let them understand what they have done. I don’t think that they recognize what they have done to copyright protection here.”
This understanding is vital, and will become more and more vital as we progress into the digital age. Olive points out that this ruling does not just affect photographers; it’s a blow for artists, writers, software developers, and anyone else whose copyrights might be blatantly ignored by the state.
We will continue to follow Olive’s story and keep Fstoppers readers updated on any breakthroughs. In an ironic side note to this story, The C.T. Bauer Business School at the University of Houston is currently offering a course entitled Copyrights: Maximize Benefits, Minimize Risks.
You can see more of Jim Olive's beautiful, copyright protected work at his website here.
Image used here with permission from Jim Olive.
Watching a large and important educational institution purposely and aggressively steal work with complete impunity — and an impunity they seem to be well aware of — is horrifying. I'm sure it's usually the case in the U.S too, but here in the U.K, universities are extremely vigilant to theft of work. While not perfectly comparable, if I were to steal a research paper from UH they would rain down upon me with fiery vengeance, I have no doubt.
Or just try to use footage of one of their sporting events without their express written consent.
I also find it incredible that this was done by a Uni.
I wonder what their stance is on Plagiarism?
Let alone if a student plagiarized work for a research paper. :~/
University of Houston is a considered a school of last resort in Texas. It doesn't surprise me at all that they did this.
The old copyright rules don’t apply to the current internet world...
Even if you are dum enough to disagree and say it is the law .. then you really don’t know society and the fact that things against the law are done every day and minute.
Get Over It !!
LOL Priceless. The comment above is edited and still says.
The word is "dumb", but you would have to be smart to spell it correctly.
Does the University offer online courses that out of state students can take? Perhaps Olive can file a lawsuit in one of those states. I wish him well.
This is a perfect example of why photographers and other "freelance" creatives need a trade association or union similar to those that fight for writers, actors and directors in Hollywood. Such an org could aggregate resources to take a case like this the whole way to the supreme court if necessary.
I agree. They should call it something like "The Professional Photographers of America" or maybe the "American Society of Media Photographers," or something like that.... I dunno, im not good at naming things, these are prolly stupid names. While we are at it we can invent the wheel cause no ones done that yet.
If copyrighted digital media is not really property does that mean if iI take it from someone else, it's not really stealing? So all those movies downloaded from Pirate Bay torrents are not stolen and I can't be held for accountable by Hollywood's lawyers?
Surely the University of Houston has online courses. I wonder how the powers that be at that school would feel about students pirating those courses, placing an uncompensated burden on the professors and then bypassing the security in place for school records and creating transcripts for themselves to be displayed proudly AND used for personal gain by those thieves.
I'm guessing they'd be rather pissed and would prosecute the living crap out of them.
The difference is sovereign immunity under which the state can "legally" take whatever it wants. We do not have sovereign immunity so if we pirate their course it is stealing, if they pirate your course then it is not. This does not only apply to photography.
Yeah, I know. Hence the part about prosecution.
Here's a twist for you...
I happen to work for another public university. If *I* took the course material, in principle I would be protected. (Of course, I'd never do this, to be clear.) If our department started heisting other universities' courses, I imagine that they'd be awfully upset. Maybe a token protest is in order. ;)
Eminent domain would be a better policy for Texas, I think, than sovereign immunity. I also think it would be unlikely to apply to a photograph of a skyline to advertise a school.
I guess screwing over it's citizens is something else that's done bigger in Texas.
Since I have to collect and pay sales tax to the state of Texas because they consider my product (photography) to be "tangible goods," then images are property in the eyes of the state. The ruling is therefore hypocritical.
Excellent point.
Shame on the university for stealing. And shame on the court for approving theft.
To be clear, I think this is wrong and unconscionable.
However, let's be clear. The 'taking' aspect was never going to wash. Nothing has been taken, the photographer can still exploit the image and make money from it. 'Taking' implies transfer of ownership, it's not at all the same as an unauthorised use. The photographer has not actually lost anything, he has simply not gained something to which he would understandably feel entitled, a different matter entirely.
Still and all, it sucks and respect to him for testing the legal waters here.
I will not be 100% agree.
He put his tag on the picture and it has been erased.
It's not just download and use. But download, remove the owner name, don't credit it, and use it for corporate promotion.
If this is not stealing something, I'm not sure what is it.
Erasing the name could be seen as a loss of potential clients, no?
He published this picture to promote himself, put the name as link to him if you like to get similar job done. the picture was hosted on his server paid by him.
Removing this link is the wrongdoing to start with.
Like I said, he's not lost anything, just failed to gain something. 'Taking' implies there is an 'original' to steal. Images are infinitely reproducible. That's all.
But yes, wrong on many counts, just not 'taking'. It's stealing reproduction rights, not the image itself.
I'm sorry, but your answer fails to take into account the fact that repeated use reduces the value of an image. No client wants to use a photo that has been overused. This is a common theme in intellectual property laws. Next you'll be saying that someone who just walks onto a movie theater without buying a ticket is justified since that seat would have gone unsold anyway.
Agree about the possible falling value although that is very hard to quantify. If you read the article and my comments more closely you'll see that I was making a distinction between taking and unauthorised use. Nor was I justifying the illegal use in any form ("To be clear, I think this is wrong and unconscionable."). No need to straw man me.
Can olive appeal on the grounds that this was theft..and defamation of character..
This is every damn week for me. People steal my city work by finding it on Google. Real estate companies will go as far as putting their logos on my shots too. I have this angle of Houston via drone, Visit Houston uses. IG @JOSEPHHAUBERT
I certainly do hope he changes his mind and is able to find another route to pursue his case, as this would set dangerous precedent for our industry.
Only in Texas
I have a question for Texans. Does the United States of America flag fly above or below the Texas state flag at their capitol?
If the US flag flies above the Texas flag, then one could assume that federal laws overrule state laws, such as copyrights.
If the Texas flag flies over the US flag, then state laws overrule federal laws.
Position of flags, while traditional and even legal issues in some locations have nothing to do with whos laws supersede someones elses. Countries are not run based on who flies a piece of fabric higher than the other. Thats nonsense.
As "Droopy" would say, "that makes me mad"!
I just reported the stolen photo through their fraud reporting app on UH's website. lol
"The ruling is just another hard hit to the rights of creatives whose copyrighted work has no physical value in the eyes of the government. In essence, this ruling is stating that copyrighted digital property is not really “property”, and does not fall under the taking rule."
AND YET—they consider digital property to be real property when it comes to paying sales tax on it for a photographer's clients. You can't have it both ways, Texas.
The issue of intellectual property has always been everywhere. It is difficult to find the only right solution to this, but you can always refer to my thesis on this topic, which I wrote with the help of https://sky-writer.com/ultius-review/ he read many different reviews about sites that eventually helped me to do a good job.
Yet, it's a fine line, isn't it? There are tangible benefits given to photographers (and other artists) for creating art used for the public good. One could argue that the UH's using the image was for the public good. So Olive received intangible benefits (e.g., the exposure he's receiving from the issue and ability to use the UH publication in his art testimonies) and tangible benefits (additional sales hopefully, but also tangible tax benefits). Don't get me wrong, I'd be p*ssed if it happened to me, too. But at some point I'd satisfy myself with the $2500 payout, most likely. As soon as they made that counter offer, he'd lost his main leverage. They offered to pay him "reasonable" compensation and he rejected it. Perhaps he just saw deep pockets from the UH that he thought he could get his hands into. As artists, we can spend our time fighting city hall or spend it satisfying our own needs and those of our paying clients. I've never had a public client act as UH did with Olive. They've always accepted that I need to be compensated (reasonably) and negotiated in good faith. I think that's the case with most of us.