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.
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.