Recently, the Graphic Artists Guild signed on to an amicus brief filed by NPPA and AMSP on a case that puts an interesting spin on copyright infringement. Aerial photographer Jim Olive contacted the University of Houston after discovering the school had illegally used one of his photographs. When Olive raised the specter of a copyright infringement lawsuit, the University informed him that, as a state organization, they are “immune to lawsuits” such as a copyright lawsuit. However, Olive discovered an alternate way to demand payment: through the Takings Clause in the Fifth Amendment of the US Constitution. It’s an unusual and potentially effective way to address copyright infringement by governmental agencies.

The Back Story

To create his aerial photography, Olive rents a helicopter, straps himself in, and leans out the open door of the helicopter to take his shots. It’s a dangerous and expensive process, but the resulting photography is striking and unique, therefore ripe for infringement. Olive takes that into account. His website, Stockyard Photos, prominently displays his copyright information and has a page devoted to instruction on licensing his photos. He embeds his content management info into each photograph, and he uses a company to monitor the Internet for unlicensed use of his photos.

In 2015, he discovered that the University of Houston had taken one of his photos, a Houston aerial, stripped out his identifying information, and used it on their website as well as in print publications over the course of three and a half years. Once his photograph was published without any credit, publishers, such as Forbes and other users nabbed the photo from the University of Houston website and used it. Forbes not only used the photograph, they incorrectly credited the University as the copyright holder.

Olive sent the University a cease and desist letter and a bill for $41,000 ($16,000 for frequent use and $25,000 for stripping off his identifying information). The University immediately removed the photo. However, they brushed aside his invoice amount, offering instead $2,500 in compensation. (Their initial offer was only $50, prompting Olive to observe that renting a helicopter is significantly more expensive.) When Olive raised the prospect of a copyright infringement lawsuit, the University informed him that, as a state organization, they are “immune to lawsuits” under the principle of sovereign immunity.

Sovereign Immunity and Copyright

The protection invoked by the University – sovereign immunity – is provided in the 11th Amendment of the US Constitution. The amendment grants states immunity from lawsuits by citizens for monetary damages without the state’s consent. Sovereign immunity is derived from early English law. Broadly, it protects state employees from lawsuits, permitting them to do their jobs without the threat of litigation.

Sovereign immunity has become a thorny issue when it comes to copyright disputes, particularly when state agencies such as universities are involved. To quote IP Watch:

“In general, states – including many arms of a state such as state universities — are immune from being sued for violating Federal intellectual property laws unless they affirmatively have waived the immunity. This disparity can give the state a significant advantage over other entities in IP matters.”

The Fifth Amendment Takings Clause

The University’s invocation of sovereign immunity stopped a copyright lawsuit from proceeding, but Olive may have found a constitutional end run. Instead of a copyright infringement lawsuit, Olive filed a claim in state court for “unlawful taking” under the Takings Clause in the Fifth Amendment of the US Constitution. The Takings Clause states that if the state seizes your private property under eminent domain, they are required to compensate you for the value of that property. Olive is asserting that his private property — his copyright — was taken by the state without compensation.

The University attempted to get the lawsuit dismissed by issuing a plea to the jurisdiction, a formal challenge that questions the propriety of the lawsuit or the mode of remedy being sought. Their appeal stated that Olive did not have a viable takings claim, arguing, among other things, that copyrights are not a personal right similar to property rights. It was an argument that Judge Caroline Baker found unpersuasive, and she denied the plea in April 2018. Currently, the University is appealing the decision, hence the amicus brief from NPPA and ASMP.

While bringing a lawsuit citing the Takings Clause is an unusual way to remedy a copyright infringement, this isn’t the first time this has happened. In 2010, photographer David Langford sued the State of Texas Department of Public Safety under the Takings Clause. In this case, Langford’s photograph of a cowboy carrying a saddle was silhouetted and used on 4.5 million state inspection stickers. Langford eventually settled with the state.

Photograph © Jim Olive, Stockyard Photos. Used with permission.