Texas Supreme court rules that copyright infringement by the state is not a taking. OLIVE v. UNIVERSITY OF HOUSTON

United States copyright law grants the creator of a new work the exclusive right to reproduce, distribute, perform, display, transmit and prepare derivative works based on the copyrighted work. A creator is granted a copyright when they create a copyrighted work. A copyright can be registered with The United States Copyright Office to strength the rights associated with it, however registration is not required for a copyright to be granted. If someone other than the copyright owner attempts to exercise one of the exclusive rights granted by copyright law, that can be considered copyright infringement. A copyright owner can file a complaint with a court to stop copyright infringement with an injunction and to get monetary damages for infringement which has already occurred.

In the United States a copyright is one of several legal concepts which shape the outcome of lawsuits. Another important legal concept is sovereign immunity. Sovereign immunity is the principle that a government cannot be sued unless the government consents to be sued. In the case of copyright infringement, the federal government has specifically waived its immunity from copyright infringement lawsuits under 28 USC 1498(b), but the penalties a copyright plaintiff can recover are extremely limited. State governments are generally considered immune from liability for copyright infringement unless the state has specifically waived the immunity.

To every rule there is an exception and one of the exceptions to sovereign immunity is the takings clause. The United States Constitution and most states constitutions generally provide that ‘private property shall not be taken for public use, without just compensation’. The question then becomes does copyright infringement qualify as a taking?

JIM OLIVE PHOTOGRAPHY D/B/A/ PHOTOLIVE, INC., V. UNIVERSITY OF HOUSTON SYSTEM, 19-0605 (Tex. 2021) is a case in which the Supreme Court of Texas found that when the state infringes on a copyright, it is not a taking.

Plaintiff is a professional photographer in Houston, Texas. In 2005 Plaintiff took a series of aerial photographs of the City of Houston and displayed them on his website for purchase. Included in the series was a digital photograph
identified as SKDT1082—“The Cityscape.” Before displaying these photographs, Plaintiff registered them with the United States Copyright Office. Plaintiff’s website displays an appropriate copyright notice and states that the unauthorized use of these images is strictly prohibited.

Some time in 2012, Defendant downloaded a copy of The Cityscape photograph from Olive’s website, removed all identifying copyright and attribution material, and began displaying the photographic image on several webpages promoting the Defendant’s C.T. Bauer College of Business. Plaintiff sued Defendant on the theory that the Defendant is a state university and that Defendant’s use of the photograph without a license constituted a taking.

The Trial court sided with the Plaintiff. The Appeals Court reasoned that the Defendant’s single act of copyright infringement was not a taking because it did not take away Plaintiff’s right to use, license, or dispose of the underlying creative work. And while the Defendant’s infringement may have cost Plaintiff a licensing fee, it did not rise to the level of a viable takings claim. Plaintiff appealed that decision to the Supreme Court of Texas.

The Supreme Court of Texas noted that a taking is the acquisition, damage, or destruction of property via physical or regulatory means. In a per se taking, the government’s “appropriation of property” means the property was “actually occupied or taken away” from the owner. It is an “actual taking of possession and control” by the government. But an act of copyright infringement by the government does not take possession or control of, or occupy, the copyright. The Supreme Court of Texas ultimately concluded that because copyright infringement does not involve the government confiscating a copyright it does not qualify as a governmental taking.

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