Texas Appeals Court Finds Copyright Infringement By Government Does Not Constitute a Taking

Originally published by Cris Feldman.

Nearly everyone understands the concept of copyright. Individuals can obtain copyright protection for books, songs, computer software, and photos, among many other things. Once a copyright is obtained, the holder can seek compensation from individuals that unlawfully use the copyrighted work. This fairly straightforward legal concept was turned on its head recently when a photographer filed a lawsuit against The University of Houston System (a government entity) not for infringing upon his copyright, but alleging the university’s use of his photograph constituted a violation of his Fourth Amendment rights.

A Texas appeals court recently heard a case filed by Jim Olive Photography against The University of Houston System after the university used one of his photographs in advertising materials for its CT Bauer School of Business in 2012. Because the university is a government entity, it is immune from lawsuits, including copyright infringement lawsuits under the Doctrine of Sovereign Immunity, which protects all government entities from most lawsuits.

As a workaround to government immunity, Jim Olive Photography argued the violation of his Fourth Amendment rights. The Fourth Amendment protects individuals from the unlawful seizure of property by the government without proper compensation. Jim Olive Photography argued that by using his photograph without his consent, the government (i.e. the university) took his property.

The Texas First Court of Appeals found “No Texas case appears to have addressed whether a copyright is property for purposes of the takings clause and whether copyright infringement by a state actor is a taking.” Because of this, the judges had to rely on federal cases to inform their decision. With guidance from similar federal lawsuits, the judges determined that using a copyrighted photo did not constitute a taking under the Fourth Amendment. In order for the claim to constitute a Fourth Amendment violation, the plaintiff would need to prove the government took the entire copyright interest. Because Jim Olive Photography was still able to use and license the photo itself, the government didn’t take all interests related to the photo. The court ruled the case was in fact a copyright infringement case, which the university is immune to.

Lawsuits With Government Entities

The takeaway from this lawsuit is that any legal action involving government entities will be incredibly complex. At Feldman & Feldman, our lawyers have extensive experience handling claims against governmental entities. We understand the nuances of this type of public interest litigation and can help you resolve these legal issues efficiently. Contact us today to schedule an appointment with one of our government litigation lawyers.

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