Texas Appeals Court Finds Copyright Infringement By Government Does Not Constitute a Taking

Nearly everyone understands the concept of copyright. Individuals can obtain copyright protection for books, songs, computer software, and photos, among many other things. Once a copyright is obtained, the holder can seek compensation from individuals that unlawfully use the copyrighted work. This fairly straightforward legal concept was turned on its head recently when a photographer filed a lawsuit against The University of Houston System (a government entity) not for infringing upon his copyright, but alleging the university’s use of his photograph constituted a violation of his Fourth Amendment rights.

A Texas appeals court recently heard a case filed by Jim Olive Photography against The University of Houston System after the university used one of his photographs in advertising materials for its CT Bauer School of Business in 2012. Because the university is a government entity, it is immune from lawsuits, including copyright infringement lawsuits under the Doctrine of Sovereign Immunity, which protects all government entities from most lawsuits.

As a workaround to government immunity, Jim Olive Photography argued the violation of his Fourth Amendment rights. The Fourth Amendment protects individuals from the unlawful seizure of property by the government without proper compensation. Jim Olive Photography argued that by using his photograph without his consent, the government (i.e. the university) took his property.

The Texas First Court of Appeals found “No Texas case appears to have addressed whether a copyright is property for purposes of the takings clause and whether copyright infringement by a state actor is a taking.” Because of this, the judges had to rely on federal cases to inform their decision. With guidance from similar federal lawsuits, the judges determined that using a copyrighted photo did not constitute a taking under the Fourth Amendment. In order for the claim to constitute a Fourth Amendment violation, the plaintiff would need to prove the government took the entire copyright interest. Because Jim Olive Photography was still able to use and license the photo itself, the government didn’t take all interests related to the photo. The court ruled the case was in fact a copyright infringement case, which the university is immune to.

Lawsuits With Government Entities

The takeaway from this lawsuit is that any legal action involving government entities will be incredibly complex. At Feldman & Feldman, our lawyers have extensive experience handling claims against governmental entities. We understand the nuances of this type of public interest litigation and can help you resolve these legal issues efficiently. Contact us today to schedule an appointment with one of our government litigation lawyers.

How A 2015 Texas State Law Could Allow The State To Takeover HISD

The Houston Independent School District has been subject to much criticism and controversy regarding the school board’s handling of underperforming schools. Texas Governor Greg Abbott has stated the school board needs to be taken over to replace ineffective leadership – and a 2015 state law could allow this to happen.

The Texas Education Agency (TEA) is the state agency responsible for overseeing public schools. TEA has the authority to take over leadership of schools if the school has been labeled “improvement requirement” for five consecutive years. TEA has exercised this authority in the past in a number of ways.

In recent years, TEA has closed down underperforming schools and even entire school districts; however, the agency has never taken over a school board. Doing so would be particularly unusual because voters elect school board officials. In 2015, a law was passed that gave TEA the authority to impose sanctions on school districts with schools that are consistently not meeting state standards. If the TEA decided to take over the Houston Independent School District, the agency could control the school board for two years or even longer until TEA decides the school district has met academic standards.

School board officials have criticized the idea of a takeover and instead blame the district’s underperforming schools on a lack of funding from the state. It’s currently unclear whether or not TEA will takeover HISD, but current HISD board members would likely put up a legal fight if the agency did. Educational entities have certain protections from liability, which means any legal action taken against them quickly becomes complicated.

Understanding Lawsuits With Educational Entities

Because of local and state regulations regarding educational entities, any lawsuit involving an educational entity will hinge on understanding and applying them. At Feldman & Feldman, our attorneys have successfully represented educational entities in the past and we continue to provide unparalleled legal services to educational entities. Our attorneys understand the nuances and complications of lawsuits of this nature and can help educational entities navigate legal issues to a successful resolution. Contact us today to schedule an appointment with one of our attorneys.