Here’s the latest in a case we’ve been following.

In Jim Olive Photography v. Univ. of Houston, No. 19-0605 (June 18, 2021), the Texas Supreme Court affirmed the court of appeals, concluding that a public university’s unauthorized use of a photograph on its website was merely copyright infringement, and not a taking. 

The opinion is short, and mostly mirrors the rationale of the court of appeals, so if you just want to read our summary of the court of appeals’ opinion, you may stop here. But if not, read on.

The facts: Jim Olive took a photograph that the University of Houston used on its website after stripping off all attribution. When Olive discovered the unauthorized use, he demanded the University take it down. It did, but it refused to pay for its use. Olive sued in a Texas state court for taking his intellectual property, seeking just compensation under both the Texas and U.S. Constitutions.

The University made two arguments in opposition: (1) intellectual property isn’t “property” protected by the takings clauses; and (2) if it is, the University’s unauthorized use was merely copyright infringement, not a taking. The court of appeals agreed with the University, at least on the second argument. But it avoided the foundational issue of whether IP qualifies as takings clause property. The Texas Supreme Court granted a discretionary writ.

The Supreme Court opinion, like that of the Court of Appeals, acknowledged the disagreement among scholars over whether IP is takings clause property, and that the U.S. Supreme Court has concluded that IP is property for purposes of due process protections. But like the court of appeals, the Texas Supreme Court avoided the issue and simply assumed that Olive’s copyright qualifies as property for takings clause purposes.

It did so because it concluded that copyright infringement cannot be a taking, at least in the situation here. Starting on page 9 of the slip opinion is where you will find the good stuff:

  • A copyright may be property, but it is intangible property and not like the raisins in Horne. So this was not a “physical” taking because the University didn’t seize the actual photograph, it used it without permission.
  • But what about the various “sticks” in the non-tangible thing? The University’s use did not seize possession or control of the Olive’s rights, and did not destroy his right to use or dispose of his rights.
  • But, Olive argued, I have the right to use the photo exclusively. The University’s unauthorized use violated that exclusive right, he asserted. Just because you didn’t take all my rights, the right to exclusivity is maybe the most important stick, and should be subject to per se analysis. 
  • The court rejected that argument, concluding that Olive could still do all (most?) of the things he could do before the unauthorized use: he could exclude third parties from using it (except the University, apparently!), he could use the photo himself and license it to others. He can dispose of the picture, give it away, sell it, and the like. What the court termed “nonrivalrous” use. Slip op. at 15.

Three Justices concurred to note that the Texas Constitution also includes a “damaging” clause, and that some circumstances might trigger damage liability. See Concurring Op. at 9 (“For example, would compensation be required if a state university allowed its employees and students to stream copyrights movies without the owners’ permission, or if it gave an unauthorized license to a printer to make copies of a copyrighted textbook and then distributed them to its students (or students across Texas) for free?”). But Olive didn’t raise a damaging claim, only a per se taking claim.

Jim Olive Photography v. Univ. of Houston, No. 19-0605 (Tex. June 18, 2021)