Jim Olive Photography v. Univ. of Houston Sys.

Opinion

The issue in this interlocutory appeal from the denial of a plea to the jurisdiction is whether a copyright infringement claim against a governmental entity may be maintained as a constitutional takings claim. The court of appeals concluded "that a governmental unit's copyright infringement is not a taking and that the trial court therefore erred in denying the plea to the jurisdiction." 580 S.W.3d 360, 363 (Tex. App.—Houston [1st Dist.] 2019). Because we agree that the [*2]  violation of a copyright, without more, is not a taking of the copyright, we affirm.

Jim Olive Photography d/b/a Photolive, Inc. (Olive) is a professional photographer in Houston, Texas. Olive took a series of aerial photographs of the City of Houston in 2005 and displayed them on his website for purchase. Included in the series was a digital photograph identified as SKDT1082—"The Cityscape." Before displaying these photographs, Olive registered them with the United States Copyright Office. Olive's website describes the applicable copyright protections and states that "[t]he unauthorized use of these images is strictly prohibited."

Olive alleges that sometime in June of 2012, the University of Houston downloaded a copy of The Cityscape photograph from Olive's website, removed all identifying copyright and attribution material, and began displaying the photographic image on several webpages promoting the University's C.T. Bauer College of Business. The University did not seek Olive's permission to use The Cityscape photograph, and Olive did not discover that a copy was being displayed on the University's webpages until years later. After the discovery, Olive demanded that the University [*3]  cease and desist its unauthorized use, and the University immediately removed the photograph from its website. The University, however, did not pay Olive for its use of the digital copy on its website.

Olive sued the University of Houston, alleging that the University's publication of his photograph was an unlawful taking and sought compensation under Article I, Section 17 of the Texas Constitution and under the Fifth Amendment of the United States Constitution. The University answered and filed a plea to the jurisdiction, asserting its immunity from suit under the doctrine of sovereign immunity. The trial court denied the University's plea, prompting it to pursue an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing an interlocutory appeal from an order on the government's jurisdictional plea).

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