Government Organizations Can Grab Photos Without Paying

Posted on 6/19/2019 by Jim Pickerell | Printable Version | Comments (0)

The Texas Appeals court has ruled that the state can infringe upon copyright without risking punishment under the state’s or federal government’s “takings” clause.

More than two years ago, photographer Jim Olive discovered that his aerial photo of the Houston skyline (titled “The Cityscape”) was being used by the University of Houston, a public university, on its website to promote its C.T. Bauer College of Business without requesting permission or making payment.

The photographer then sent the university a bill for $41,000 — $16,000 for the usage and $25,000 for removing his copyright credit from the photograph.

Once notified of the unauthorized use the university quickly took down the photo, but only offered Olive $2,500 for the usage.

After Olive sued the university, the university pushed for the case to be dismissed arguing that as a public institution they have sovereign immunity, which protects state government entities from a variety of lawsuits.

Olive’s side responded by arguing that the copyright infringement was an unlawful “taking” under the state’s constitution, which prohibits the government from taking private property without adequately compensating the owner.

Initially, a State of Texas District Judge ruled that Olive could proceed with his copyright infringement lawsuit, but now the Court of Appeals for the First District of Texas has overturned that ruling.

“Even if the government sets itself up as a competitor by producing a copyrighted work, there probably is not good reason to conclude automatically that the copyright has been ‘taken,'” the three-judge panel cites in its ruling. “The copyright holder can still exclude all private competitors even as the government pirates the entirety of his work.”

“[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 continues. “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.

“Instead, in the absence of authority that copyright infringement by a state actor presents a viable takings claim […] we decline to so hold.”

The NPPA notes that the US Congress passed the Copyright Remedy Clarification Act (CRCA) decades ago to prevent states from having governmental immunity from copyright claims, but some appeals courts have held that CRCA goes beyond Congress’ powers and have therefore struck it down as unconstitutional.
The matter will likely go before the Supreme Court (in Allen v. Cooper) sometime in 2020.

“The Texas ruling affects more than just photographers,” NPPA wrote. “It appears that a state entity could engage in broad piracy without being accountable.”

“It just doesn’t seem fair to me,” Olive told the Houston Chronicle. “With this, they can just run rampant over copyright and take intellectual property with impunity.”

Copyright © 2019 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


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