Photographer Claims Copyright Infringement a Per Se Physical Taking by University of Houston

Earlier this month, a Texas photographer continued his fight against the University of Houston system over photographs of the Houston city skyline, appealing a Texas Supreme Court decision against him that denied his copyright infringement claims and found that the University of Houston System had not waived its sovereign immunity. As a result, Texas photographer Jim Olive filed a petition for writ of certiorari, requesting that the U.S. Supreme Court step in and vacate the Texas Supreme Court decision and remand the case for reconsideration.

Texas Photographer Claims Copyright Infringement Equates to a Physical Taking 

In Jim Olive Photography d/b/a Photolive, Inc. v. University of Houston System, Texas aerial photographer Jim Olive argues that the University of Houston system has infringed upon his copyrighted materials by taking aerial photographs of the Houston skyline that are unauthorized, and as such, qualify as a per se physical taking that violates the Fourteen Amendment’s due process obligations as well as the Fifth Amendment’s Taking Clause because it appropriated his “right to exclude” others from the unauthorized use of his protected works. Olive argues that the Texas Supreme Court erred because it failed to apply Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (June 23, 2021), which was decided by the Supreme Court a mere five days after the Texas Supreme Court ruled against Olive.

Cedar Point Ruling on Per Se Physical Taking Violation

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court held that a government entity, California in this case, can commit a per se violation of the Fifth Amendment’s Taking Clause by unauthorized appropriation of an owner’s “right to exclude” others from utilizing his property and appropriating the “right to invade” property for itself. Id. at 2072. In Cedar Point, the U.S. Supreme Court held that the California state government erred when it gave labor organizations the right to “take access” to an agricultural employer’s property for the purpose of garnering and bolstering more union support. The U.S. Supreme Court decided that the California’s grant of access was a per se physical taking violation and therefore constituted an illegal taking under the Fifth Amendment.

Should Copyright Infringement Be Considered a Physical Taking of Property Rights?

As a parallel, Olive argues that the U.S. Supreme Court’s decision in Cedar Point should be extended to intellectual property rights because such rights are arguably property rights for the same purpose of exclusion. In response, the University of Houston system has denied that their use constitutes a physical taking under the Fifth Amendment or copyright infringement because the system has sovereign immunity and has not waived it. The Texas Supreme Court ultimately sided with the University of Houston and held that copyright infringement does not equate a physical taking of tangible property, and as a result, does not destroy Olive’s intellectual property rights, especially as he still retains the right to use, license, or otherwise dispose of his related rights to his protected work.

Key Takeaways on Copyright Infringement and Physical Taking Violations

A Texas photographer has asked the U.S. Supreme Court to reconsider a Texas Supreme Court case that found that copyright infringement does not equate to a physical taking of tangible property based on:

• The Supreme Court’s subsequent ruling in Cedar Point v. Hassid;

• Reasoning that the Supreme Court’s decision that per se violations of the Fifth Amendment Taking Clause regarding physical property should also be extended to intellectual property; and

• That sovereign immunity is not a defense to violations of the Fifth Amendment’s Taking Clause and the Fourteenth Amendment’s right to due process obligations.

For more information on copyright litigation, see our Intellectual Property Litigation and Industry Focused Legal Solutions pages.