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Taking Action in Court

Court Rules a University's Infringement Does Not Constitute a Taking

On June 11, 2019, the Court of Appeals for the First District of Texas held that a governmental unit’s copyright infringement is not a taking. This decision comes in response to a claim filed by Jim Olive in December 2017, which alleged that the University of Houston’s unauthorized use of his photograph amounted to an “unconstitutional and illegal” taking under the Texas Constitution.

Article 1 Section 17 of the Texas Constitution provides in part that "[n]o person's property shall be taken . . . without adequate compensation." Olive alleged that the University's use of his photo was a taking because "it constitute[d] an arbitrary, capricious, and unreasonable action bearing no substantial relationship to the public health, safety, and welfare."

In his complaint, Olive was seeking between $100,000 and $200,000 for the alleged taking as well as attorney's fees. The Court discussed relevant case law at length but determined that Olive's claim wasn't a taking, but rather, "the only reasonable construction of Olive's claim is that the University committed infringement. Because copyright is nonrivalrous, Olive never lost his right to use or license his photograph; the University’s infringement cost Olive a licensing fee." The Court held, "that Olive's takings claim, which is based on a single act of copyright infringement by the University, is not viable."

The court concluded by noting that its "opinion should not be construed as an endorsement of the University's alleged copyright infringement" and that "copyright owners can seek injunctive relief against a state actor for ongoing and prospective infringement."