As we have covered here before, a state’s sovereign immunity can be an insurmountable barrier to holding any state entity liable for copyright infringement. In Allen v. Cooper, the Supreme Court held that Congress did not validly revoke state sovereign immunity for copyright infringement when it enacted the Copyright Remedy Clarification Act of 1990. Since then, claims of copyright infringement against state actors continue to flounder on Allen’s rocky shoal.
The most recent shipwreck is a case just out of the Texas Supreme Court: Jim Olive Photography v. University of Houston. In that case, a Texas photographer sued the University of Houston for using one of his photographs to promote its business school. Given that the University was an arm of the State of Texas and immune after Allen, the photographer instead alleged that the University of Houston’s use of the photograph constituted an unlawful taking of property under the Texas and federal constitutions. The case wound its way to the Texas Supreme Court. The Court began by assuming, without deciding, that copyright is a form of property entitled to protection from uncompensated takings under the Texas and federal constitutions. Other than formal condemnation proceedings, a taking can generally occur in two different ways: (1) the government can physically appropriate or invade the property or (2) the government can regulate the property so restrictively that it effectively “takes” the property (or at least its value). The Texas Supreme Court held that, although the University of Houston may have used the copyrighted photo, the photographer still retained the copyright in the photo, and was still free to license it or sell it to others. Hence, the state did not actually “take” the photographer’s property (i.e., his copyright in the photo).
However, the Texas Supreme Court did leave a narrow passage open through the shoals of sovereign immunity in considering the availability of injunctive relief. The Court noted in passing that “injunctive relief is available against the infringing government itself for violating the owner’s rights.” Nonetheless, the Court concluded that copyright infringement is not confiscation, and thus does not constitute a taking that would entitle the plaintiff to damages. The Copyright Office is currently studying this problem, but until Congress acts to abrogate a state’s sovereign immunity validly, state actors appear to be able to plunder copyright with impunity.