Currently, the courts have determined that it’s impossible to bring a lawsuit against a state or tribal actor when they claim sovereign immunity because copyright does not fall under the scope of the Takings Clause. The plan would flip that.

Rebecca Blake, “In a Blow to Creators, Takings Clause Lawsuit is Dismissed in Copyright Case,” Graphic Artists Guild, 06-18-2019, https://graphicartistsguild.org/in-a-blow-to-creators-takings-clause-lawsuit-is-dismissed-in-copyright-case/

Last month, we reported on photographer Jim Olive’s lawsuit against the University of Houston for using his photograph without permission or compensation. Olive was blocked from bringing a typical copyright infringement lawsuit since the University, as a state agency, claimed sovereign immunity, a principle enshrined in the US Constitution that protects governmental agencies from many civil lawsuits. Instead, Olive sought compensation by bringing a lawsuit claiming that the University had engaged in an “unlawful taking” of his copyright. In a blow to copyright holders, the First District Court of Appeals in Houston has ruled that Olive is unable to sue under the Takings Clause.

The infringement of Olive’s photograph was clearly willful. The University not only used the photograph without permission; they also removed his credit line and stripped out his metadata. In the ruling, the court made it clear that they do not condone the University’s action, stating “This opinion should not be construed as an endorsement of the University’s alleged copyright infringement.” However, the ruling also made a distinction between copyright and tangible property rights. Although the court acknowledged that “legal scholars are divided on whether copyright should be protected from government takings,” they held that Olive’s lawsuit, based on a single act of copyright infringement, does not present a viable takings claim.

The ruling is disheartening for copyright holders. In their amicus brief, ASMP and NPPA described the precedent a ruling in favor of the University would set:

“Creative professionals, who number in the millions and generate billions for their local economies, would be irreparably harmed by allowing this type of theft to occur without consequence. As amici to those in the creative community, we see first-hand how copyright infringement devastates the creative industry, and how deep and pervasive these infringements can be.”