Bill P

Think about it, this is the road we have gleefully taken.

"You can't sue me because as a state, I am immune from prosecution."

"You can't subpoena me, or charge me with a crime, 'cause I'm the president."

bpulv Loc: Buena Park, CA

If the university published the photograph without the copyright notice and then a non-government company used it as was stated, could the photographer recover from that non-government entity or any other non-government entity that also used copies of photograph that they obtained that did not have the copyright information printed on them? I.e., did the university's actions effectively deprive the photographer of all of his copyright protections? Is there a lawyer reading this that can answer those questions?

Bill P

Is there a lawyer reading this that can answer those questions?[/quote]

I believe this is a question that needs to be posted on the Ugly Hedge Lawyer website. Be prepared, legal opinions are like opinions in general.

amfoto1 Loc: San Jose, Calif. USA

I ain't no lawyer, but I agree with you.

As best I can tell reading that legalese (I started losing it on page 4)....

The lawyer was versed in property rights and pleading in local and/or state courts on the grounds of "improper taking of property" under what's commonly called "eminent domain"...

This should have been an intellectual property rights lawyer, arguing the case in federal court!

The background states the image copyright was registered with the US Copyright office. If not registered, a case involving misuse can only be heard in local court ("small claims") AND only qualifies for "reasonable usage fees", if found in favor of the plaintiff.

But, once the image copyright has been registered, as this one appears to have been....

1. Potential users are responsible for searching the U.S. Copyright database to check an image's status.

2. Any misuse case qualifies to be heard in federal courts experienced in just this sort of case.

3. Awards for copyright infringement and unapproved use can be far more than just "usage fees". At the court's discretion, an award can include:
- Reasonable usage fees.
- General penalties for misuse.
- Additional penalties for deliberate removal of copyright protections (as was the case here), up to $30,000 per instance.
- Reimbursement of plaintiff's legal expenses.
- Liability for further misuse of image by other parties.

This can easily add up to tens or even hundreds of thousands of dollars. A lot more than a few hundred dollars of "usage fees".

An intellectual property attorney should know all this and more. And, assuming the background info is accurate, this case should never have been brought to a local or state court, or argued in the way it was.

On the whole, intellectual property also shouldn't be subject to "eminent domain", which appears to be how the university is getting out of paying in this case. Eminent domain is based upon a "greater good" need for a physical piece of property. And, even under eminent domain there should "fair compensation". (Years ago I new some of the family whose multi-generational ranch was taken under those laws... to became the Air Force Academy in Colorado. According to them, they never got fair compensation for it.)

Even under eminent domain, I just don't see how it could ever be argued that there was some overriding societal need for this guy's image to appear in the university's promotional pieces. There may be a few exceptions, but I'd think this would be the case with most copyright or intellectual property ownership of any type... in only very rare instances would eminent domain apply.

Finally, it appears that the university's use of the image led to further misuse by other parties, who were unaware of the copyright status of the image... on the one hand, that further misuse was because the university had deliberately removed copyright protections... and on the other hand, the further misuse occurred because government itself cannot own or copyright intellectual property... Aand, because it appeared on the university's website, someone could assume the image was in the public domain and free to use. As far as I'm concerned, the university is liable for this misuse, too. It would probably be difficult to find the other parties who used it at fault.

And, I wouldn't be surprised if the photographer would have been happy to donate use of his image to the university, if they'd simply asked... so long as they gave him proper credit and protected his copyright.

rook2c4 Loc: Philadelphia, PA USA

Yeah, I suppose ten minutes of reading can be a bit of a challenge for some people.

Bill P

I'm not a lawyer and I haven't read all he fine print, but in business situations, I have become somewhat skilled in reading legalese in contracts. From what I understand, they are not using something like eminent domain. Rather, they are using powers under their state constitution that do not allow government entities to be sued.

I have become more familiar with this fort of things with the back and forth between the ACLU and our former Secretary of State over voting rights issues. He has dodged this as best he could, but continues to be ruled against. Federal courts don't like him. AS I suspect Texas would if pushed, he gets more desperate each time the federal courts toss out his arguments. I suppose that they recognize that he's doing things that he thinks will help him fulfill his overwhelming desire to become President.

So, we're back to a malpractice claim.

bpulv Loc: Buena Park, CA

Assuming your analysis is correct (it sounds good to me), I wonder if he could refile the case in a federal court or appeal the decision to the federal court?

Keen

So, the view of a REPUBLICAN judge in TX is that when THE GOVERNMENT steals from you, it is NOT stealing. Remember that the next time you VOTE.

Bill P

I believe he could appeal to a federal court, but who knows. Where I live, the US Dept. of Justice has been hot on the trail of a couple of local a**holes and all we've seen is a misdemeanor conviction with a fine and no jail time. Imagine, a US District Court Justice hears a Misdemeanor case. I'll bet that judge is rethinking her decision to go to Law School.

blue-ultra Loc: New Hampshire

I would disagree with the courts decision. While it may not have been a physical taking, the photograph is "intellectual property" that the photographer invested considerable amount of money, time and use of expensive equipment. The higher court dismissed the lower court based on his plead was not correct. Perhaps a lawyer with Copyright experience may have been able to plead it correctly to the higher court that was looking out for the government backside. This would open the door to the theft of any "intellectual property" by the government., which is clearly unconstitutional.

Tough break for the photographer... This may need to go to the supreme court...

Keen

Even if government theft is theft, there is still a Statute Of Limitations. Waiting three years to complain rather invalidates the effort to recover damages....even at the Federal level. There is a three year Statute Of Limitations at the Federal level.

blue-ultra Loc: New Hampshire

There is no republican or democrat judges... only good one or bad ones... As the saying goes Justice is blind...

PHRubin Loc: Nashville TN USA

I just read this with horror. I hope it is appealed and the verdict overturned.

PHRubin Loc: Nashville TN USA

Dream on!

frankraney Loc: Clovis, Ca.

My point exactly my CV her should be able to win on either case. His property was stolen/taken, and a copy right infringement.....

But you are correct. His rights were infringed upon, but beating the government is hard to do.. It was also filled in the wrong court...