The Supreme Court of Texas ruled against Jim Olive Photography in its case against the University of Houston which the plaintiff alleged was using his photographs without his consent. The opinion was filed on Friday after arguments in the matter were heard on February 25.
This ruling follows Olive’s appeal of the previous decision, he argued that the University’s use of his photographs would be considered a “taking” and not just a single count of copyright infringement.
The plaintiff alleged that the University of Houston “downloaded a copy of The Cityscape photograph from Olive’s website, removed all identifying copyright and attribution material” and used his image to promote a new business school. The University “immediately” removed the photo after Olive sent a cease and desist letter, but did not pay him for the use of his image. Olive claimed that this was “a seizure of private property or a substantial deprivation of the right to its free use or enjoyment that is caused by government action” known as a taking. The University argued that it had sovereign immunity, and, after being denied, it filed an interlocutory appeal.
Upon reviewing the appeal, the court ruled that the “single act of copyright infringement was not a taking because it did not take away Olive’s right to use, license, or dispose of the underlying creative work.” The Supreme Court decided that this one act of copyright infringement “is akin to a transitory common law trespass for which the state has not waived its immunity.” Furthermore, they noted that a copyright is a “bundle of exclusive rights” and that control of the copyright was never taken away from Olive; therefore, there is no taking.
The Supreme Court of Texas ruled that the University of Houston retains its immunity, affirming the court of appeals’ ruling and dismissed the case.