Beck Redden secured a potentially groundbreaking victory against the University of Houston on May 30, 2018, when the 295th District Court allowed its client, local photographer Jim Olive, to proceed with his claim against the University.  The case is the first effort to hold Texas universities liable under the Takings Clause of the Texas and United States constitutions for using copyrighted materials without the owner’s permission.

The case features Houston photographer Jim Olive, who has made a career out of getting difficult and dangerous aerial shots from open helicopters, which he sells on his website.  In 2016, the University of Houston downloaded one of these photographs from Mr. Olive’s website, removed Mr. Olive’s copyright information, and used it to promote the C.T. Bauer College of Business on its website.  When confronted by Mr. Olive, the University offered to pay him $50 for use of the photograph, which it displayed on its website for three-and-a-half-years without attribution.  The lack of attribution compounded Mr. Olive’s harm, as Forbes Mexico found the photograph on the University’s website and then reproduced on its own website, again without attribution or payment to Mr. Olive.  The University’s refusal to pay reasonable compensation for its use of Mr. Olive’s property resulted in his decision to file suit.

The University filed a Plea to the Jurisdiction to defeat Mr. Olive’s claims, arguing that it cannot be sued for an unlawful Taking because (1) it has “sovereign immunity” and (2) the Copyright Act preempts state law Takings claims related to copyrights.  Beck Redden fought back against these defenses, arguing that the Texas Constitution expressly waives sovereign immunity for Takings claims and that they protect different rights than those preempted by the Copyright Act.

Judge Caroline E. Baker rejected the University’s argument and allowed the case to proceed to the next stage of litigation.  This ruling potentially opens the door for copyright holders around the country to protect their rights against state infringers — a problem that has grown in severity in the age of the internet.

Beck Redden attorney Joe Redden, Jr. served as lead counsel on the case, with the assistance of associate Owen McGovern.