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Judge rules photographer can sue UH in copyright dispute

The College of Business used Jim Olive’s Houston skyline photograph to advertise its program without compensation or credit. After initial requests for licensing proof from Olive, the University used sovereign immunity as a defense for its actions. Two years later, a Harris County court denied UH’s sovereign immunity claim and allowed Olive to sue the University for taking his property without compensation. | Courtesy of Jim Olive, Stockyard Photos

Sovereign immunity protects Texas and its institutions from lawsuits, granting them certain freedoms, like the ability to take someone’s work without compensation or credit — at least, that’s what UH argued until May, when a Harris County judge allowed a photographer’s copyright case against the University to move forward.

In 2016, Houston-based photographer Jim Olive became aware that the College of Business had been using his image of Houston’s skyline without licensing and contacted UH for payment. After receiving a $2,600 payment offer that October, which Olive believed was too low, he decided to take legal action.

According to the Houston Chronicle, Harris County Judge Caroline E. Baker denied UH’s sovereign immunity claim in May and said that much like in the case of property being taken for public use, owners of intellectual property must be compensated for government use.

“Every time that picture is posted without my credit line, I don’t have recognition for it nor marketing value,” Olive said recently. “I depend on people seeing my name under these photos to bring me business.”

Olive has been a photographer for more than 50 years, specializing in aerial photography. He sells his work through his company, Stockyard Photos, where he first posted the image in question.

He uses Image Rights, a service that searches the web for proprietary infringement, to protect his work, he said. Olive became aware of the University’s use of his image through the company’s software.

Initial dispute

Olive said his first choice was to negotiate a fee with the University, not court.

When Olive first contacted the University asking for proof of licensing, they ignored him. He said he then sent an invoice but received no response.

After not hearing back from the University, one of his employees was removed from campus when he went to discuss it with them, Olive said.

Although he had to rent a helicopter with his own money to take the picture, the University made an initial offer of $50, he said.

“I don’t know how much you know about helicopters and how much they cost, but they cost a bit more than $50,” Olive said recently.

Forbes also advertised the College of Business with that image but gave credit to the college instead of Olive. The act violates the Digital Millennium Copyright Act, which increases the penalties for copyright infringement, he said.

Olive then sought counsel from the American Society of Media Photographers. The society’s lawyer managed to negotiate a $2,600 fee in 2016.

But the negotiated sum did not compensate for the expenses associated with taking the photograph and the subsequent loss of control over the image, Olive said.

According to The Cougar’s initial coverage in 2017, “(Olive) counter-demanded $25,000 for each Digital Millennium Copyright Act infringement for removing Olive’s watermark, once for UH’s use and once for Forbes’. (Olive) also tacked on $16,000, plus a tax of $1,320 for UH’s false licensing; in total, they requested $67,320.”

UH spokesperson, Mike Rosen, said the image was taken down in 2016, days after being contacted by Olive.

Business ethics

Olive criticized the College of Business’ ethics code after, he said, the college brushed him aside and disrespected his copyright and profession.

The section Jim Olive refers to in the College of Business’ ethics code. | Screenshot from Bauer College of Business’ website

“It says a company’s most valuable asset is its reputation for quality products and service integrity and that they’re committed to the reinforcement and further development of those ethical values,” Olive said recently. “Stealing a picture would contravene those ethics and not trying to set it right.”

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