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Court of Appeals of Texas, First District, Houston
June 11, 2019, Opinion Issued
[*363] In this interlocutory appeal from the trial court's denial of a plea to the jurisdiction, we must determine if a viable constitutional takings claim can be asserted when the State commits copyright infringement. We conclude 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.
Jim Olive Photography d/b/a Photolive, Inc. (Olive) sued the University of Houston System, alleging an unlawful taking and seeking just compensation under Article I, Section 17 of the Texas Constitution and under the Fifth Amendment of the United States Constitution. Olive, a professional photographer, alleges that he took a series of aerial photographs of the City of Houston at dusk in 2005. To take these photographs, Olive rented a helicopter, hired a pilot, and, utilizing special photography equipment, suspended himself from the helicopter with a harness. While suspended in the harness, Olive took photograph SKDT1082— "The Cityscape" —the subject of this litigation.
Olive registered The Cityscape with the United States Copyright [**2] Office on November 18, 2005 and displayed it for purchase on his website. Olive owned all rights associated with The Cityscape, and his website had numerous references to licensing the website's photographs, including an entire page labeled "Copyrights and Usage," which described the applicable copyright protections held in the photographs and explicitly stated that "[t]he unauthorized use of these images is strictly prohibited."
Olive alleges that sometime around June of 2012, the University of Houston downloaded The Cityscape from Olive's website, removed all identifying copyright and attribution material, and displayed it on several webpages to promote the University's C.T. Bauer College of Business. The University never contacted Olive about using his photograph and never compensated him for its use.
Over three years later, Olive discovered that his photograph was being displayed on the University's Bauer College of Business webpages. Olive informed the University of its unauthorized use of the photograph and demanded that it cease and desist this use. The University immediately removed the photograph from the College's website. Olive further alleges that the University's display [**3] of the photograph without attribution allowed private actors such as Forbes Magazine to republish and display The Cityscape without Olive's permission and without compensation.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
580 S.W.3d 360 *; 2019 Tex. App. LEXIS 4746 **; Copy. L. Rep. (CCH) P31,473; 2019 WL 2426301
UNIVERSITY OF HOUSTON SYSTEM, Appellant v. JIM OLIVE PHOTOGRAPHY, D/B/A PHOTOLIVE, Appellee
Subsequent History: Petition for review filed by, 09/25/2019
Petition for review granted by Jim Olive Photography v. Univ. of Hous. Sys., 2021 Tex. LEXIS 46 (Tex., Jan. 15, 2021)
Affirmed by Jim Olive Photography v. Univ. of Houston Sys., 2021 Tex. LEXIS 537 (Tex., June 18, 2021)
Prior History: [**1] On Appeal from the 295th District Court, Harris County, Texas. Trial Court Case No. 2017-84942.
infringement, copyright infringement, patent, immunity, photograph, trade secret, patent infringement, property right, holder, dicta, intellectual property, trial court, purposes, rights, viable, copyright owner, federal government, property interest, state actor, Tucker Act, trademark, damages, display, injunctive relief, just compensation, personal property, copyrighted work, copyright-infringement, subject-matter, competitors
Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Affirmative Defenses, Immunity, Preliminary Considerations, Jurisdiction, Subject Matter Jurisdiction, Pleading & Practice, Pleadings, Rule Application & Interpretation, Real Property Law, Inverse Condemnation, Governments, Local Governments, Claims By & Against, Elements, Involuntary Acquisition & Diminution of Value, Takings, Copyright Law, Scope of Copyright Protection, Subject Matter, Specific Subject Matter, Duration & Renewal, Duration, Copyright Infringement Actions, Civil Infringement Actions, Remedies, Federal Court Jurisdiction, Constitutional Copyright Protections, Federal & State Law Interrelationships, Federal Preemption, Constitutional Law, State Sovereign Immunity, Remedies, Injunctions, State & Territorial Governments, State Sovereign Immunity, Waiver, Copyright Infringement Actions, Torts, Public Entity Liability, Immunities, Sovereign Immunity, Liability, State Tort Claims Acts, Bill of Rights, Fundamental Rights, Eminent Domain & Takings, State Constitutional Operation, Scope of Copyright Protection, Courts, Common Law, Torts, Trespass to Real Property, Business & Corporate Compliance, Trademark Law, Causes of Action Involving Trademarks, Infringement Actions