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?

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.

Maybe I should give it up, but I am going to take one more stab at the issue. Despite the overreaction and misinterpretation that abounds in the commentary in this thread, This is not a threatening decision. It is not about enforcing a copyright and it will have little impact outside of Texas. If a company or person in Texas violates that same copyright, the photographer can still sue for damages.

This case stands for a narrow proposition: a copyright violation by a government entity is not a "taking" under the 5th Amendment. That is all. Violation of a copyright is fundamentally different from taking all value from the property owner. All the plaintiff lost was revenue from one use of his copyrighted photo. He could still license it or sell it to others and was still protected by his copyright. Under the doctrine of sovereign immunity, he just couldn't sue the university for damages in the manner he still is able to for violations committed by non-government parties.

The rationale behind sovereign immunity is in fact rational, but a much larger topic than is merited in this thread. Just recognize that one of the reasons for this doctrine is to save taxpayers large sums of money not having to pay for constant frivolous lawsuits. It is a statutory compromise that in this particular case has a harsh result, but protects all citizens/taxpayers from a larger risk.

So quit the hysteria and snarky remarks about being screwed by the court and how this is the end of copyright law. No such thing happened or is true. It is a narrow holding and actually has nothing to do with the protection afforded under copyright law.

I feel better now, so I will cease and desist.