Jim Olive Photography d/b/a Photolive, Inc. vs. The Univ. of Houston Sys., 2017-84942 (Court 295, Harris Cnty., Dec. 22, 2017).
On December 22, 2017, Jim Olive filed a complaint in Texas state district court against the University of Houston (“UH”). Olive alleges that UH’s unauthorized use of his photograph amounts to an “unconstitutional and illegal” taking under the Texas Constitution (Article 1, Section 17). Individuals and businesses normally sue under the takings provision when the government takes their private property for public projects such as roads or government buildings.
Olive, a Houston photographer, specializes in taking photos of city skylines by climbing into helicopters and sitting strapped in a harness dangling hundreds of feet above the ground. Opportunities for this experience do not come cheap, and Olive must rent the helicopter for up to $2,500 an hour. Olive hired a copyright infringement scanner called Image Rights to notify him of any unauthorized use of his photographs. Image Rights flagged UH’s use of one of Olive’s photographs of the Houston skyline. Olive alleges that not only had UH been using the photo without permission, but it had also stripped off his watermark. According to the student-run UH publication The Cougar, this photo was then used by UH in a Forbes article. (The website has since removed the photograph and is now using a different one.)
According to the Houston Chronicle, Olive originally sent the university a cease-and-desist letter and a bill for $41,000, which included $16,000 for the use of the photo and $25,000 for removal of the watermark. UH responded by taking down the photograph from its website and offering to pay Olive $2,500. When Olive threatened to sue for copyright infringement, UH replied that it was sheltered from such litigation under the principle of sovereign immunity. This legal doctrine protects UH or other government entities from lawsuits in specific legal areas such as copyright infringement. Olive’s suit in state court for UH allegedly “taking” his photo is a creative method to try to get around the sovereign immunity issue.
Olive is not the first one to try suing under a “takings” claim instead of pursuing a traditional copyright infringement claim. According to the Houston Chronicle and the San Antonio Express-News, David K. Langford, another Texas photographer, was able to reach a settlement with the Texas Department of Public Safety over a similar “takings” suit filed in 2010. Langford alleged that his photograph, “Days End 2”, was used on 4.5 million vehicle inspection stickers.
According to the complaint, Olive is seeking between $100,000 and $200,000 for the alleged “taking” as well as attorney’s fees. On January 26, 2018, UH responded to the complaint and continued to claim sovereign immunity for its defense.