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Mediation Resolves Photograph Copyright Dispute

Southwestern University and photographer settle their copyright infringement case through mediation.

In a post on December 16, 2019, we reported on a case wherein Jim Olive and his company Photolive (jointly "Olive") filed suit against Southwestern University ("Southwestern") for Southwestern's use of Image SKDT1082 (the "Image"). Olive's Complaint states that the Image is a photograph of Houston that he took at great personal risk and expense while hanging in a harness suspended from a helicopter at dusk.

The Cullen Building at Southwestern University

The Complaint alleges that in 2019, Southwestern used the Image repeatedly without permission on its website and on the Facebook page of the Houston Chapter of the Southwestern University Alumni Association. Olive identifies these uses as copyright infringement, since the Image has been registered with the Copyright Office and Southwestern did not seek or obtain a license before using it. Olive also claims that Southwestern's uses violated the Digital Millennium Copyright Act by omitting the copyright information included with the Image where it is offered for licensing on Olive's website.

Olive reportedly contacted Southwestern, asking the university to stop using the Image and to compensate Olive. While Southwestern complied with the former request, Olive claims that it ignored the latter. As a result, Olive instituted the lawsuit, seeking a jury trial, damages, and attorney's fees.

Southwestern's Answer to the Complaint denies most of the allegations in the Complaint, acknowledging only that an image of Houston appeared on its website and on the alumni association's Facebook page and that Olive contacted Southwestern asking it to cease using the Image and to compensate him. Along with affirmative defenses of laches, unclean hands, waiver, estoppel, and acquiescence, the Answer also asserted that Southwestern had not violated the Copyright Act or the Digital Millennium Copyright Act and that its conduct had been in good faith.

The case went through the usual preparations for discovery, and the court ordered that the parties participate in mediation to see if the dispute could be settled without going to trial. On July 15, 2020, the mediator contacted the judge to report that the case had successfully settled on confidential terms. The next day, an Order of Dismissal was filed by the court.