Recently, the Court of Appeals for the First District of Texas held that the University of Houston’s unauthorized usage of Jim Olive’s photograph was not considered a taking of his property. Jim’s copyrighted photograph of downtown Houston, called “The Cityscape”, was downloaded from his website and used without his permission by the University of Houston on one of their webpages. Once Jim discovered the use, he notified the University and they removed the image but by that time, Jim says that the display of the photo without attribution allowed even more people to infringe upon his work.

After a lower court denied the University of Houston’s claim of sovereign immunity, they filed an appeal. In preparation for the appellate court proceeding, PPA signed an amicus brief, which is a document filed in the court of appeals written by a person or group with a strong interest in the case although they are not part of it. In addition to PPA, the North American Nature Photography Association (NANPA), Graphic Artists Guild, Inc. (GAG), and American Photographic Artists (APA) supported this amicus brief  written by the National Press Photographers Association (NPPA) and the American Society of Media Photographers (ASMP) as a show of support for Jim’s position in the case.

There was a clear and egregious infringement of Jim’s copyright so why did his attorney decide to base their argument on a completely different legal principle? Under the Eleventh Amendment, states and government entities are immune from being sued in federal court for money damages. At this time, the only way to sue someone for copyright infringement is to file the lawsuit in federal court. Because the University of Houston is a public university and thus considered a state actor, Jim would be unable to sue them under this premise.

For that reason, Jim’s attorney decided to assert the claim that by the University of Houston infringing on his copyright, they violated the Takings Clause. The Takings Clause is a constitutional provision under the Fifth and Fourteenth Amendments that says that private property shall not be taken for public use, without just compensation. Sounds like this case should have still ended up in Jim’s favor, right? Well, so far, the Takings Clause has only been used in reference to real property, like houses and land. Although intellectual property is considered property for the purpose of due process (i.e., the “no person shall be deprived of life, liberty, or property, without due process of law” idea), courts and legal scholars alike are split on whether intellectual property is covered by the Takings Clause.

In Jim’s case, the Court of Appeals argued that the University’s usage of Jim’s photo was not a taking because, in their opinion, Jim would be able to license the same image to others. When the government “takes” someone’s property, the property is usually condemned and the person can no longer use the property. Here, the Court stated that because Jim still maintained his copyright in the image and the University did not have an exclusive license, that he still has the opportunity to make money off of the image and all this particular usage did was make him lose a license fee. The Court likened this usage to a trespass and not taking. However, in the amicus brief an argument was made that because the image was already being used by a prominent organization, it would be unlikely that others would still be interested in using the same image.

So what happens now? The amicus brief pointed out that this case is setting a problematic standard of not requiring public institutions in Texas to pay for photographs or other creative content. There is however a bit of good news. Because the topic of whether intellectual property is considered property under the Takings Clause is not settled law, another case could come along and a court could rule in favor of the right’s holder instead of the state actor. Hopefully, this case will start to encourage more courts to take a look at our property laws and discern why certain functions of real property do not apply to intellectual property. Although intangible, intellectual property is just as important and capable of ownership as tangible property and thus should have the same protections.

Don’t forget: you can stay on top of copyright issues as they arise, and keep up on the status of the CASE Act for small-claims copyright protection at PPA.com/copyright.