TX court rules that TX colleges can steal your photos or other creative work freely
Jun 21, 2019 14:00:57 #
Los-Angeles-Shooter
Loc: Los Angeles
The NPPA is disappointed to report that this week an intermediate appeals court in Houston, Texas held that a state entity can infringe copyright without being held responsible under the takings clause of the Texas or U.S. Constitutions, “even as the government pirates the entirety of his work.”
The case began when Texas photographer Jim Olive discovered that the University of Houston was using one of his aerial photographs for marketing purposes without permission. When Olive asked the University to pay for the use, they refused and told him they were shielded from suit because of sovereign immunity, which protects state government entities from many lawsuits.
“Considered this as our shot across the bow that should encourage others to rise up and take a stand against this ruling,” Jim Olive said to the NPPA on Thursday. “This isn't over nor should it be until we achieve a successful resolution protecting our rights.”
For decades, photographers have faced problems of infringement by state actors who, when challenged with the infringement, assert immunity from suit. Decades ago, Congress passed the Copyright Remedy Clarification Act (CRCA) which said that states could not get governmental immunity from copyright claims. However, several federal appeals courts, including the one that controls Texas copyright claims have held that the CRCA went beyond Congress’s powers and is invalid. The question is currently before the United States Supreme Court in the case of Allen v. Cooper, which should rule on the matter sometime in 2020.
After the University took down the image but refused to pay him, Mr. Olive filed a lawsuit alleging that the state used his property without just compensation, known as a “takings.” The Takings Clause is typically thought of in terms of the government’s seizure or destruction of real property, but it applies to all personal property and has been applied in patent and trade secrets cases by some courts.
NPPA working together with ASMP, filed an amicus brief in the case. The brief was joined by the North American Nature Photography Association, Graphic Artists Guild, American Photographic Artists, and Professional Photographers of America. The visual arts associations explained the devastating consequences that befall the creative community in Texas and nationwide if state-sponsored copyright infringement remains unchecked. The brief further argued that the state’s position attempts to set up a free collective licensing scheme for its own benefit, in violation of the federal government’s exclusive domain over copyright. The brief also outlines how the University’s claim that the copyright infringement was merely negligent should fail because all contemporary photographs are presumed copyrighted.
This week a three-judge panel of the First Court of Appeals in Houston held that “Olive's takings claim, which is based on a single act of copyright infringement by the University, is not viable.”
The Texas ruling affects more than just photographers—it appears that a state entity could engage in broad piracy without being accountable. In sharp contrast, just weeks ago, a federal jury found that the Houston Independent School District was liable for $9.2 million for repeatedly infringing on the copyright of the maker of study guides.
Mr. Olive has the right to file a motion for a rehearing en banc (meaning the entire court rather than just the three-judge panel) as well as seek review by the Supreme Court of Texas.
An author who is in a similar bind has started a GoFundMe campaign to assist Mr. Olive with the cost of his legal battle.
The case began when Texas photographer Jim Olive discovered that the University of Houston was using one of his aerial photographs for marketing purposes without permission. When Olive asked the University to pay for the use, they refused and told him they were shielded from suit because of sovereign immunity, which protects state government entities from many lawsuits.
“Considered this as our shot across the bow that should encourage others to rise up and take a stand against this ruling,” Jim Olive said to the NPPA on Thursday. “This isn't over nor should it be until we achieve a successful resolution protecting our rights.”
For decades, photographers have faced problems of infringement by state actors who, when challenged with the infringement, assert immunity from suit. Decades ago, Congress passed the Copyright Remedy Clarification Act (CRCA) which said that states could not get governmental immunity from copyright claims. However, several federal appeals courts, including the one that controls Texas copyright claims have held that the CRCA went beyond Congress’s powers and is invalid. The question is currently before the United States Supreme Court in the case of Allen v. Cooper, which should rule on the matter sometime in 2020.
After the University took down the image but refused to pay him, Mr. Olive filed a lawsuit alleging that the state used his property without just compensation, known as a “takings.” The Takings Clause is typically thought of in terms of the government’s seizure or destruction of real property, but it applies to all personal property and has been applied in patent and trade secrets cases by some courts.
NPPA working together with ASMP, filed an amicus brief in the case. The brief was joined by the North American Nature Photography Association, Graphic Artists Guild, American Photographic Artists, and Professional Photographers of America. The visual arts associations explained the devastating consequences that befall the creative community in Texas and nationwide if state-sponsored copyright infringement remains unchecked. The brief further argued that the state’s position attempts to set up a free collective licensing scheme for its own benefit, in violation of the federal government’s exclusive domain over copyright. The brief also outlines how the University’s claim that the copyright infringement was merely negligent should fail because all contemporary photographs are presumed copyrighted.
This week a three-judge panel of the First Court of Appeals in Houston held that “Olive's takings claim, which is based on a single act of copyright infringement by the University, is not viable.”
The Texas ruling affects more than just photographers—it appears that a state entity could engage in broad piracy without being accountable. In sharp contrast, just weeks ago, a federal jury found that the Houston Independent School District was liable for $9.2 million for repeatedly infringing on the copyright of the maker of study guides.
Mr. Olive has the right to file a motion for a rehearing en banc (meaning the entire court rather than just the three-judge panel) as well as seek review by the Supreme Court of Texas.
An author who is in a similar bind has started a GoFundMe campaign to assist Mr. Olive with the cost of his legal battle.
Jun 21, 2019 14:06:53 #
Jun 21, 2019 14:47:57 #
An example that government is getting too big and powerful, thinking only of the people running it and not the people for and by whom the government is employed.
Jun 21, 2019 22:28:09 #
amfoto1
Loc: San Jose, Calif. USA
There are several weird things in this case, which was discussed at length in another thread.
I ain't no lawyer, but...
1. The image in question was an aerial photograph which cost the photographer a lot of investment to make and, according to the photographer, it was properly registered with the U.S. Copyright office. As such, I don't understand why suit was filed in Texas state courts. Once a copyright has been registered, the owner is entitled to bring suit in federal courts which are experienced with just this sort of thing. I can't help but wonder if the lawyer who was hired has intellectual property experience... The "taking" claim sounds like what's often called "eminent domain", which is supposed to only be used in cases where "the greater good" of society at large benefits from the "taking" of an individual's property. (For example, someone I was acquainted with years ago had their multi-generational ranch taken under eminent domain... it's now the Air Force Academy in Colorado.) "Fair compensation" is supposed to be rendered in the case of eminent domain (My acquaintance in Colorado received very little for their property. Changes have been made that are supposed to make for fairer compensation today.)
2. A registered copyright is entitled to much more than just "fair compensation", in the case of infringement. In addition to fair market value, the federal court will typically award a plaintiff reimbursement of all their legal expenses, penalties that can run into the tens or thousands, and even added penalties for deliberate removal of copyright protections, which seemed to have been done in this case. Those added penalties can be up to $30,000 per instance.
3. Further, reportedly the image was also used without permission by other parties who, seeing it appearing on a government website without any form of copyright protection, assumed it was free to use. (Government cannot own a copyright or any other form of intellectual property... buy it's very definition, government "property" is the "public".) However, since this image was the intellectual property of an individual, and it was due to the university's use of that image and their deliberate removal of copyright protections from the image, I think it could be argued that the university is liable for that misuse of the image, as well.
4. If the photographer's attorney messed up, perhaps isn't as familiar with intellectual property law as they should be and/or failed to correctly file suit in federal court, it's my guess that the attorney might have some liability, too.
Several of us in the other thread read through the 34 page court decision... as best we could (lotsa legalese!). But we aren't lawyers. It will be interesting to follow the case. I hope an appeal has been filed! The decision is ridiculous and flies in the face of copyright protections at the federal level. I think there's a good chance of a reversal and a BIG award for the photographer, if they get into a federal court with an appeal. The photographer did everything right (if the copyright hadn't been registered, he would only be entitled to "fair use fees" and could only file suit in a local or state "small claims" court). Except maybe he hired the wrong lawyer. What's even worse is that the university probably could have simply bought licensed usage of the image for a lot less than it's cost them to pay lawyers to fight this case!
I ain't no lawyer, but...
1. The image in question was an aerial photograph which cost the photographer a lot of investment to make and, according to the photographer, it was properly registered with the U.S. Copyright office. As such, I don't understand why suit was filed in Texas state courts. Once a copyright has been registered, the owner is entitled to bring suit in federal courts which are experienced with just this sort of thing. I can't help but wonder if the lawyer who was hired has intellectual property experience... The "taking" claim sounds like what's often called "eminent domain", which is supposed to only be used in cases where "the greater good" of society at large benefits from the "taking" of an individual's property. (For example, someone I was acquainted with years ago had their multi-generational ranch taken under eminent domain... it's now the Air Force Academy in Colorado.) "Fair compensation" is supposed to be rendered in the case of eminent domain (My acquaintance in Colorado received very little for their property. Changes have been made that are supposed to make for fairer compensation today.)
2. A registered copyright is entitled to much more than just "fair compensation", in the case of infringement. In addition to fair market value, the federal court will typically award a plaintiff reimbursement of all their legal expenses, penalties that can run into the tens or thousands, and even added penalties for deliberate removal of copyright protections, which seemed to have been done in this case. Those added penalties can be up to $30,000 per instance.
3. Further, reportedly the image was also used without permission by other parties who, seeing it appearing on a government website without any form of copyright protection, assumed it was free to use. (Government cannot own a copyright or any other form of intellectual property... buy it's very definition, government "property" is the "public".) However, since this image was the intellectual property of an individual, and it was due to the university's use of that image and their deliberate removal of copyright protections from the image, I think it could be argued that the university is liable for that misuse of the image, as well.
4. If the photographer's attorney messed up, perhaps isn't as familiar with intellectual property law as they should be and/or failed to correctly file suit in federal court, it's my guess that the attorney might have some liability, too.
Several of us in the other thread read through the 34 page court decision... as best we could (lotsa legalese!). But we aren't lawyers. It will be interesting to follow the case. I hope an appeal has been filed! The decision is ridiculous and flies in the face of copyright protections at the federal level. I think there's a good chance of a reversal and a BIG award for the photographer, if they get into a federal court with an appeal. The photographer did everything right (if the copyright hadn't been registered, he would only be entitled to "fair use fees" and could only file suit in a local or state "small claims" court). Except maybe he hired the wrong lawyer. What's even worse is that the university probably could have simply bought licensed usage of the image for a lot less than it's cost them to pay lawyers to fight this case!
Jun 22, 2019 00:12:43 #
The state entity -- here the college -- may be immune from damages under Texas law and the 11th amendment, but that does not mean that the state actors -- the college personnel who appropriated the photographs and infringed the copyright -- are likewise immune from a damage claim.
Jun 22, 2019 08:07:11 #
If you read the whole of the court’s decision you will see that although they decided it wasn’t a ‘taking’ it was most likely a ‘tort’ and should have been filed as such. However there is a time limit of 6 months to bring a tort action against a State entity in Texas. The photog probably wasted the 6 months negotiating with the college before filing and was only left with the ‘taking’ as an ‘iffy’ plan B.
Jun 24, 2019 17:28:58 #
There's a reason the statue of Lady Justice shows her wearing a blindfold. The law is not about justice, it's about the skills of the lawyers.
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