Texas court says state institutions can use copyrighted material for free

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A Texas appeals court has ruled that the University of Houston does not have to pay the photographer of a picture it has been using in online and print promotional materials. Houston photographer Jim Olive says the university removed copyright markings from an image downloaded from his stock library, failed to credit him when it was used and wouldn’t pay when he sent a bill, but the university claims it has sovereign immunity and that it can’t be sued.

The case surrounds an aerial image Olive shot from a helicopter hired specifically for making pictures for his library. In an online image search, he found the university was using it on its website and then in printed materials. When it failed to pay an invoice he sent for the usage Olive tried to sue the university, but it claimed that under the Eleventh Amendment it couldn’t be sued as it is a state institution.

In an attempt to get around this Olive tried to sue the University of Houston for taking his property – in which case even government agencies would have to compensate the owner. The Court of Appeals though has said that the university’s actions didn’t comprise ‘taking’ and that Olive will have to pay the university’s legal costs.

The Court of Appeals though has said that the university’s actions didn’t comprise ‘taking’ and that Olive will have to pay the university’s legal costs.

According to a report in the Houston Chronicle, which described the success of the university as ‘a big win’, Olive said 'It just doesn’t seem fair to me.'

If this ruling is allowed to stand it would seem that any state institution can use images and other intellectual property without having to pay the originators, a precedent that would be damaging to photographers across the country, because if that's the case in Texas, it may well be true in all other states covered by the Eleventh Amendment.

The detailed ruling concerning the appeal heard in the Court of Appeals for The First District of Texas by Justice Richard Hightower can be read on CaseText, and the applications from the start of the case can be seen on the Copyright Alliance website. Ironically, the university has a page on its site to allow users to report copyright infringements – and to request permission to use UH intellectual Property.