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Copyright Blog

Photographer Hopeful in "Taking" His Case to the Supreme Court

The Photographer is Looking for Relief in Long-Running Copyright Dispute.

We previously reported on a case in which Plaintiff Jim Olive Photography ("Olive") brought suit against the University of Houston ("UH") for unauthorized use of Olive's photograph. Olive argued that UH's use of his photo constituted a governmental taking. For more information on the arguments, please refer to our February 1, 2018 and July 22, 2019 posts.

Since our last update, there have been significant developments.

First, the case went before the Texas Supreme Court. In its Opinion and Concurring Opinion, the Texas Supreme Court affirmed the court of appeals decision “that Olive’s allegations of copyright infringement by the government do not constitute a per se taking.” The court continued that, “an act of copyright infringement by the government does not take possession or control of, or occupy, the copyright” and that the infringement did not “necessarily destroy those rights because the copyright owner retains them even after the infringement.” The court concluded that, "[b]ecause the State retains its immunity in the absence of a properly pled takings claim, the court of appeals did not err in sustaining the jurisdictional plea and dismissing the case."

Photo by Pok Rie. Pexels

After the Texas Supreme Court's ruling, Olive filed a Petition to appeal the Texas Supreme Court's decision to the Supreme Court of the United States ("SCOTUS"). On November 15, 2021, in his Petition for Writ of Certiorari, Olive argued that the Texas Supreme Court’s decision conflicts with SCOTUS’s ruling in Cedar Point Nursery v. Hassid that was issued earlier this year.

In Cedar Point Nursery, SCOTUS ruled that the California law, which allowed labor organizers free access to Cedar Point Nursery’s property for recruitment purposes, constituted a physical taking. Olive argues that the "Cedar Point Nursery [decision] calls into serious question the correctness of the decision below and creates a ‘reasonable probability’ that the court would reach a different outcome on reconsideration."

Olive argues that his work, like the property in Cedar Point Nursery, was invaded but not completely taken away which the “Court found that such an interference with the owners’ right to exclude ‘appropriates a right to invade the . . . property and therefore constitutes a per se physical taking.’” Olive also argues that “Cedar Point Nursery does not require the complete destruction of [Olive's] rights in the copyrighted work.” Olive asserted that, "the simple fact that Petitioner retains his right to license his work and exclude the general public from utilizing his work . . . says nothing about whether Respondent appropriated for itself a three-year, royalty-free license to utilize, reproduce, and display the copyrighted work in direct violation of Petitioner's right to exclude."

The question Olive has presented to SCOTUS "is whether the petition should be granted, the decision below vacated, and the case remanded for further proceedings in light of Cedar Point Nursery?"

We will continue to follow this case and provide updates as they become available.