Photographer tries novel legal strategy to get UH to pay up

Olive shot this photo from a helicopter, which can cost him up to $2,500 an hour. Olive shot this photo from a helicopter, which can cost him up to $2,500 an hour. Photo: Jim Olive Photo: Jim Olive Image 1 of / 5 Caption Close Photographer tries novel legal strategy to get UH to pay up 1 / 5 Back to Gallery

When local photographer Jim Olive threatened to sue the University to Houston to force it to pay his price for a photo posted on a UH website, the school told him to get lost. As a state institution, the university said, it has sovereign immunity, which protects it from copyright and most other lawsuits.

Olive did go away, but not for long. He has the university back in court, pursuing an unusual legal strategy more commonly associated with real estate than intellectual property.

Olive recently filed suit against UH in state district court in Harris County, claiming that the university's unauthorized use of his photo of the Houston skyline amounted to "unlawful taking" under the Texas Constitution, which prohibits government agencies from taking private property without adequate compensation. The takings provision is typically used when government wants to build a new road, school or other public projects.

Legal analysts said if successful, Olive's approach could provide a tool for writers, photographers and artists trying to defend their intellectual property in the internet age, when pictures, stories and images are reproduced with little regard to ownership.

"That is quite unusual, to say the least," said Houston intellectual property lawyer Steven Mitby. "It could open up a lot of options."

The University of Houston said in a written statement that it attempted to resolve the matter by offering to pay what it believed to be fair market value for the photograph.

"UH has great respect for artistic talent and federal copyright protections and has routinely paid, and will continue to pay, market value for images provided by artists and professional photographers," said Mike Rosen, executive director of media relations.

Olive is the latest to try a broad interpretation of the takings law to win compensation from a government agency. Hundreds of homeowners have sued the U.S. Army Corps of Engineers, arguing that the agency's decision to release water from local reservoirs during Hurricane Harvey while knowing it would flood their homes amounted to an illegal taking.

Olive, 72, a professional photographer for five decades, specializes in skyline photos. He rents a helicopter for as much as $2,500 an hour and sits sidesaddle out the open door to capture Houston's urban landscape. Olive knows his photos are routinely used without his permission —or payment—so he hired a service to find out who is using them.

When he finds an offender, Olive sends a letter about the copyright violation and a bill. Most pay up.

The service notified Olive in 2016 that the University of Houston's C.T. Bauer College of Business had used one of his aerial photos since 2012, according to his lawsuit. He sent the university a bill for $41,000, which included $16,000 for the frequent use of the photo and $25,000 for stripping off Olive's credit line when the university allegedly provided a copy to a national magazine for a story about the university's ranking.

Within days, the University of Houston removed the photo from its website, according to court documents. In a August 2016 letter, the university offered to pay $2,500. When Olive threatened legal action, the university said it was immune from federal copyright lawsuits under the common law principle of sovereign immunity.

"They just blew us off," said Olive. Under Texas law, he would have to convince the Legislature to pass a bill allowing him to sue the university.

But Olive thought there may be another way around the problem when he learned Texas artist David Langford successfully settled a similar dispute. Langford alleged an illegal taking when he sued the Texas Department of Public Safety eight years ago for using his 1984 photograph of a cowboy carrying a saddle without permission or payment on 4.5 million vehicle inspection stickers, according to court documents.

Olive is seeking unspecified damages.