A Controversial Copyright Issue

[Slobodan Blagojevic]

https://www.digitalcameraworld.com/news/texas-court-rules-that-state-institutions-can-take-images-without-paying?utm_content=buffer5f10a&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer_DigitalPhotographerMagazine

“Texas court rules that state institutions can take images without paying”

The story begins with an image titled ‘The Cityscape’, captured by a Houston-based photographer by the name of Jim Olive.

The image in question, shot out of a helicopter, is a tricky sort of photo to capture, which made it all the more frustrating to find that the University of Houston and gone ahead and used it to promote its CT Bauer College of Business...

[32BT]

“Texas court rules that state institutions can take images without paying”

Yeah, it's been all over internutz, and as usual the internutz goes total nutz, but people fail to engage some braincells. The ruling is a technical ruling which simply states that takings doesn't apply since no ownership was transferred or denied. Infringing is not the same as taking. Seems like a solid ruling.

The problem in this case is the impunity enjoyed by state organisations, because that was the original reason for the legal strategy chosen by the copyright holder. And you have to ask: under what circumstances do you want a government institute (and with it: the taxpayer) be held liable for the actions of its members or employees? You'd probably don't want that (in general), but at the same time you can very obviously hold those individual members and employees responsible for their actions.

In other words: sue the responsible individuals, whether there is any compensation to be had probably depends on the value of those individuals to the institute.

But perhaps Jeremy can chime in, since he is far more qualified to share some words of wisdom than any of us.

[Slobodan Blagojevic]

Oscar, you totally lost me.

But if I understood anything you said properly, the stance that state institutions can not be held responsible for actions of their employees acting as representatives of such institutions, I find preposterous.

[32BT]

Oscar, you totally lost me.

But if I understood anything you said properly, the stance that state institutions can not be held responsible for actions of their employees acting as representatives of such institutions, I find preposterous.

You impeach the President, you don't take the entire government to court for his/her failures.

The government as an organisational structure is what allows you to go to court in the first place.

Of course, this is likely too simplistic, and not something you or I really are qualified to argue about, but it does mean that perhaps a relatively mundane copyright infringement case was not the right vehicle to reassess the validity of that construct.

[Chris Kern]

“Texas court rules that state institutions can take images without paying”

Well, I guess you could say that headline that is a plausible summary of the outcome of this case, but like many headlines it's an oversimplification.

The Texas state appellate court's opinion is complex and rather dense—there are, so to speak, a lot of moving parts—but I'll try to summarize the aspects I think are most relevant to us as photographers:

• It is clear that a component of the Texas government—the University of Houston, which is a state-operated institution—infringed the photographer's copyright.  The university implicitly acknowledged this by immediately removing the photograph in question from its website after being contacted by the photographer.
• In the United States copyright protection is based on a federal statute and infringement claims must be pursued in the federal courts.
• However, as a general rule, the U.S. constitution does not permit federal courts to decide private lawsuits against the individual state governments.
• So the plaintiff photographer asserted his claim in the state courts—not as a copyright infringement, but rather as an exercise of eminent domain: the authority of the state government to acquire private property under certain circumstances without the consent of the property owner as long at the owner is fairly compensated—arguing that the state owed him compensation for the "taking."
• The court concluded that the relevant state and federal rulings regarding the scope of eminent domain do not currently extend to the "taking" of copyrighted materials.
• Texas, like most U.S. states, has a constitutional doctrine of "sovereign immunity" that precludes damage claims against the state except where the state legislature has created a statutory exception to the doctrine for a particular type of claim.
• The appeals court ruled that the state legislature had not authorized the Texas courts to consider intellectual property lawsuits such as this one against the state government.
• The court said its opinion "should not be construed as an endorsement of the University’s alleged copyright infringement," and noted that copyright owners could seek injunctive relief to require "a state actor" from continuing ongoing or engaging in prospective infringement.
• This case has no significance as a precedent outside of Texas.

The Texas legislature could easily fix this.  I don't know much about the state's politics, but my impression is that many Texans are skeptical about government assertions of eminent domain.  Vehement opposition by Texas landowners has been reported, for example, to President Trump's demand for a "wall" along the border with México, which would involve the acquisition of private property by the federal government.

[Slobodan Blagojevic]

Chris, many thanks for the clarification.

However, it appears that you are confirming that a photographer in Texas has no legal recourse if the state wants to use its photographs? 

[OmerV]

Yeah, it's been all over internutz, and as usual the internutz goes total nutz, but people fail to engage some braincells. The ruling is a technical ruling which simply states that takings doesn't apply since no ownership was transferred or denied. Infringing is not the same as taking. Seems like a solid ruling.

The problem in this case is the impunity enjoyed by state organisations, because that was the original reason for the legal strategy chosen by the copyright holder. And you have to ask: under what circumstances do you want a government institute (and with it: the taxpayer) be held liable for the actions of its members or employees? You'd probably don't want that (in general), but at the same time you can very obviously hold those individual members and employees responsible for their actions.

In other words: sue the responsible individuals, whether there is any compensation to be had probably depends on the value of those individuals to the institute.

But perhaps Jeremy can chime in, since he is far more qualified to share some words of wisdom than any of us.

What’s the difference between taking and infringement when a visible copyright is purposely removed from a photograph?

[Jeremy Roussak]

But perhaps Jeremy can chime in, since he is far more qualified to share some words of wisdom than any of us.

I know very little of American law, and not much more about the English law of intellectual property.

One point I can clarify, since it's been raised. In English law, corporations are liable for torts - acts of wrongdoing - by their employees acting in the course of their duties. It's known as vicarious liability, it's been around for well over 100 years and I would be astonished if it were not a feature of American law also. The extent of an employee's duties, and whether deliberate acts also confer vicarious liability, is a fairly active area of development. The Wikipedai article on the topic is not bad.

It's fairly clear from a reading of the first few paragraphs of the judgment that this is a highly technical area of law and the word "taking" is, in context, a term of art which should not be imagined to hold its commonplace meaning.

As far as I can tell, this photographer's greed has landed him in trouble. He was offered $2,500 for a temporary infringement which, it seems, could not be shown to have caused him any harm, but he wanted nearly 20 times as much and he chose a misguided route to getting it. Dollar signs in a client's eyes should be a big red flag to any lawyer: it indicates that the litigation is going to end in tears.

Jeremy

[Jeremy Roussak]

I did find this paragraph intriguing, though:

The Copyright Remedy Clarification Act (CRCA) was supposed to remove state institutions from immunity of this kind, but appeal courts such as the Court of Appeals for the First District of Texas often refuse to recognize it.


It would be, er, unusual for a court, even an appellate court, to "refuse to recognis[z]e" an Act of Parliament in the UK.

Jeremy

[32BT]

What’s the difference between taking and infringement when a visible copyright is purposely removed from a photograph?

They are still not claiming actual ownership of the copyright itself (as in the right to sell the image, or denying the original owner his right to sell).

And I would think that it is exactly the act of removing the visible watermarks and copyrights signs that makes it possible to start legal actions against the individuals responsible. You can no longer cover this up with some lame excuse about an overly enthousiastic intern. Shake up the organisation from within.

[Chris Kern]

However, it appears that you are confirming that a photographer in Texas has no legal recourse if the state wants to use its photographs?

A photographer could ask the Texas courts to order unlicensed photographs to be removed from state websites, brochures, etc., and/or require that they not be used by state institutions in the future.  But money damages are precluded—at least within that particular state appellate district.  (I don't know enough about Texas law to opine whether this decision would be considered a binding precedent in other districts, although it probably could be used as "persuasive"—i.e., rather than mandatory—authority.)

[Chris Kern]

One point I can clarify, since it's been raised. In English law, corporations are liable for torts - acts of wrongdoing - by their employees acting in the course of their duties. It's known as vicarious liability, it's been around for well over 100 years and I would be astonished if it were not a feature of American law also.

Yes, indeed: as long as the act is within the scope of the individual's employment.  Of course, in the Texas case, if the defendant had been a corporation, the plaintiff photographer would have sued for statutory copyright damages—and undoubtedly prevailed—in federal court.
 

As far as I can tell, this photographer's greed has landed him in trouble.

My impression as well.

[Bart_van_der_Wolf]

And I would think that it is exactly the act of removing the visible watermarks and copyrights signs that makes it possible to start legal actions against the individuals responsible.

+1

The removal of the copyright notices was a bridge too far.
Payment for the (unauthorised) use and/or public excuses were in order.
But then the photographer overstepped his opportunities.

Cheers,
Bart

[JoeKitchen]

Yes, indeed: as long as the act is within the scope of the individual's employment.  Of course, in the Texas case, if the defendant had been a corporation, the plaintiff photographer would have sued for statutory copyright damages—and undoubtedly prevailed—in federal court.
 
My impression as well.

This would only be the case if the image was registered with the Library of Congress.  I did not read the article and have no knowledge if the image was, just pointing out that statutory damages can only be sued for if the image was registered.  Also, the limit, set by law, is $125K per occurrence. 

Insofar as the other point, the recent Oberlin College settlement proves that employers' are responsible for employees' actions. 

[Chris Kern]

This would only be the case if the image was registered with the Library of Congress.  I did not read the article and have no knowledge if the image was, just pointing out that statutory damages can only be sued for if the image was registered.

Yes, it was registered.  But the statutory damages for copyright infringement were unavailable to the photographer—as would have been actual damages—because U.S. federal courts do not have jurisdiction to enforce the copyright laws against a state government or a component thereof.

[Slobodan Blagojevic]

A photographer could ask the Texas courts to order unlicensed photographs to be removed from state websites, brochures, etc., and/or require that they not be used by state institutions in the future.  But money damages are precluded...

Which again means that the state can use copyrighted material freely, without compensation. When caught, they just stop doing it. The original purpose might have been achieved by then, i.e., advertising usually has a time limit for usefulness.

[JoeKitchen]

Yes, it was registered.  But the statutory damages for copyright infringement were unavailable to the photographer—as would have been actual damages—because U.S. federal courts do not have jurisdiction to enforce the copyright laws against a state government or a component thereof.

Got that, just trying to make the point that if you make a living off of intellectual property, register your damn work!

Congress in recent years has tried to weaken copyright and one of the excuses used is that less than 2% of artists register their works, implying that we as a whole do not take copyright seriously. 

Really, register your work.  I know the website sucks and probably could not be designed to be more confusing (hey, it's the government, so what do you expect), but after you go through the process a few dozen times, it starts to becomes second nature. 

[32BT]

Insofar as the other point, the recent Oberlin College settlement proves that employers' are responsible for employees' actions.

For private sector: of course, since they can simply file for bankruptcy or use other diversionary tactics. For government or singular public entities, clearly this can't be the case. If the government is dismantled because an individual member creates intentional trouble, we probably would live in chaos real quick. Similarly, if you set up a public university (or a public library for example), it would not be very useful or fair to the public if they can no longer enjoy the services by the wrongdoing of a single individual.

[OmerV]

They are still not claiming actual ownership of the copyright itself (as in the right to sell the image, or denying the original owner his right to sell).

And I would think that it is exactly the act of removing the visible watermarks and copyrights signs that makes it possible to start legal actions against the individuals responsible. You can no longer cover this up with some lame excuse about an overly enthousiastic intern. Shake up the organisation from within.

It would have been embarrassing for the school to claim ownership after the photog went public.

Well, not surprisingly, according to Wikipedia, "Copyright holders frequently refer to copyright infringement as theft."

But judges have stated:

Courts have distinguished between copyright infringement and theft. For instance, the United States Supreme Court held in Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property. Instead,

"interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: '[...] an infringer of the copyright.'"

Give me a break.

[OmerV]

Which again means that the state can use copyrighted material freely, without compensation. When caught, they just stop doing it. The original purpose might have been achieved by then, i.e., advertising usually has a time limit for usefulness.

Well, there you go. But that's Tejas.