• The image by Jim Olive that was repeatedly used by the University of Houston to promote their business school.
    The image by Jim Olive that was repeatedly used by the University of Houston to promote their business school.

US university infringes copyright, and gets away with it

An American photographer got a nasty surprise when he learnt that under Texan law he has no recourse against a university that not only repeatedly used one of his images for commercial purposes without permission or payment, but also stripped off his credit when they provided the image for a national magazine about the university’s ranking.

Back in 2016, Houston photographer Jim Olive sent the University of Houston a bill for US$41,000 (US$16,000 for frequent use of his image in marketing material to promote its business school and US$25,000 for stripping off the credit). While the university has an operating budget in excess of US$1.5 billion, they refused to pay, instead removing the image, and instead offering US$2,500. Olive threatened to sue, but the university, a public institution stated that it would claim sovereign immunity – a legal principle that protects a state from getting sued.

When he sued back in 2016, the argument that Olive put forward that that using his image without permission or compensation was unlawful “taking” under the Texas Constitution. This prohibits government agencies from taking private property without adequate compensation.

As reported in the Houston Chronicle last week, the university scored a major win, and most likely set a very dangerous precedent, when the ruling of a lower court was reversed by a state appeals court, and consequently forbid Olive from suing the university for using the image, without permission, to promote their business school. What’s more, not only will Olive now not be able to recover any damages, nor was he ever paid the US2,500, but he was ordered by the appeals court to pay the legal fees of the University of Houston.

The Court of Appeals for the First District of Texas determined that the university's copyright infringement was not a "taking" of his property. Their view of property seems to relate only the physical and tangible, and not intellectual property. ‘[W]e hold that the Olive’s takings claim, which is based on a single act of copyright infringement by the University, is not viable,” the ruling stated. “This opinion should not be construed as an endorsement of the University’s alleged copyright infringement, and as discussed, copyright owners can seek injunctive relief against a state actor for ongoing and prospective infringement.”

According the Olive, the bigger issue for the creative community is that the decision means that public institutions in Texas, including public hospitals, universities, and government agencies, don't have to pay for photographs and other creative content. "With this, they can just run rampant over copyright and take intellectual property with impunity," Olive said.

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