# University of Houston Illegally uses image and doesn't care!



## Tailgunner (Oct 29, 2016)

This isn't my photo and not sure if the photographer is a member or not. 

Anyhow, a photographer recently found out the University of Houston is using one of his photos for their website and pamphlets without his consent. They removed his markings as well. He contacted them about it and they refuse to pay him or stop using the image. He threatened to sue them and they replied they was a Government institute and couldn't be sued! 

Whats your take on this? 

Photographer Up Against University of Houston Over Photo Use


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## 480sparky (Oct 29, 2016)

Too little information in those 4 paragraphs to form any opinion.


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## tirediron (Oct 29, 2016)

Agreed; there are always three sides to every story (theirs, ours and the truth), but I'm confused by the line, _"In order to take the university to court, [Olive] would have to convince the Texas Legislature to pass a bill allowing him to sue."  _Why would a university be 'un-sueable"????


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## 480sparky (Oct 29, 2016)

tirediron said:


> Agreed; there are always three sides to every story (theirs, ours and the truth), but I'm confused by the line, _"In order to take the university to court, [Olive] would have to convince the Texas Legislature to pass a bill allowing him to sue."  _Why would a university be 'un-sueable"????



I'm no lawyer, but if they're a state-operated college, that makes them a state entity.  And US laws have evolved the old English maxim, _The Crown Can Do No Wrong_.


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## tirediron (Oct 29, 2016)

480sparky said:


> tirediron said:
> 
> 
> > Agreed; there are always three sides to every story (theirs, ours and the truth), but I'm confused by the line, _"In order to take the university to court, [Olive] would have to convince the Texas Legislature to pass a bill allowing him to sue."  _Why would a university be 'un-sueable"????
> ...


Wow....   Okay, well, in that case, assuming the facts as presented are more-or-less accurate, than the photographer is well and truly boned.  That sucks!


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## 480sparky (Oct 29, 2016)

tirediron said:


> 480sparky said:
> 
> 
> > tirediron said:
> ...



Again, I'm not a legal eagle, but............ the photographer can still sue.  Whether or not a suit can even proceed is yet another thing, let alone going to trial and possibly prevailing.

More likely, the university is betting the photographer won't have the financial capability to take them on.


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## tirediron (Oct 29, 2016)

Like I said... well and truly boned!


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## SquarePeg (Oct 29, 2016)

The photographer would be better off suing them in the court of public opinion. He/she should start a social media campaign to shame them into stopping use of the photo.   Sounds like the courts could be an expensive rabbit hole but public pressure is free and effective.


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## Gary A. (Oct 29, 2016)

There are many legal remedies for foul play by a government institution.  While it is true that some government entities cannot be sued in civil courts, those are very few.  And again, there is always remedies in place and available for corrective action. I have little knowledge of Texas law, but as copyright is federal, I suggest going to a federal court. The fact that the university removed the watermark/credit show a malicious practice which opens up a penalty phase


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## vintagesnaps (Oct 29, 2016)

I think the article linked is in a tourist/travel magazine not a news outlet. Look up and read the Houston Chronicle article, it explains about 'sovereign immunity'. I don't know if that is a state law in Texas or possibly in other states as well.

The university made the photographer an offer. I suppose I'd take that as compensation/payment for past use if it included terms that any further usage would need to be contracted and paid according to the contract.

This has already gotten publicity so I don't know that it would be worth the photographer's time and trouble to pursue it any further for now. There have been other cases related to sovereign immunity in Texas that weren't photography related so I imagine if this keeps happening there will be a need to look at the state law.


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## smoke665 (Oct 29, 2016)

tirediron said:


> Agreed; there are always three sides to every story (theirs, ours and the truth), but I'm confused by the line, _"In order to take the university to court, [Olive] would have to convince the Texas Legislature to pass a bill allowing him to sue."  _Why would a university be 'un-sueable"????



I'm not an attorney but I found this interesting little tidbit -
     The Supreme Court pretty much eliminated damages for  both copyright and patent infringement by a state agency under the Sovereign Immunity theory (yet another reason I believe the court is overstepping it's role in making law instead of ruling on constitutionality) However owners may have injunction relief against particular employees of the State, under the reasoning that when a state official acts in violation of valid federal law, that official is by definition acting outside the scope of his official duties because a State clearly cannot lawfully authorize one of its employees to act in violation of valid federal law. And, an employee of a State is cloaked with the State's immunity only when acting within the scope of his duties. Therefore, an employee of a State who acts in violation of a valid federal law is not immune and may be enjoined from that activity. However it doesn't provide for compensation for the damages already inflicted upon a copyright owner due to past infringement by a State.


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## Gary A. (Oct 29, 2016)

The top part of your statement makes sense as copyright and patents are in the sole jurisdiction of the Feds, thereby a state is immune per standing ... they don't have a dog in the fight.  So it must be adjudicated in a Federal court.  The second part is interesting cause if you win your case you can go after the state employes for ... ignorance and most likely stupidity.


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## smoke665 (Oct 29, 2016)

Gary A. said:


> The top part of your statement makes sense as copyright and patents are in the sole jurisdiction of the Feds, thereby a state is immune per standing ... they don't have a dog in the fight.  So it must be adjudicated in a Federal court.  The second part is interesting cause if you win your case you can go after the state employes for ... ignorance and most likely stupidity.[/QUOTE



Didn't see any comments about who would have jurisdiction. Since it's an individual I would assume it would be Federal Court, but again, you would be out the expense and no hope of monetary gain. As @SquarePeg said above, the court of social media is free, and could work just as well.


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## vintagesnaps (Oct 29, 2016)

I don't think there's a question of if he owns copyright to his own photograph. The issue is unauthorized usage - the university apparently did not contract usage of the photo and the photographer did not license usage to the university.

You know, all those sites that say users of the site retain copyright... but are agreeing to allow usage of their photos?? There's a difference between owning the copyright and usage.

I think the issue is the law in Texas about sovereign immunity which seems to hinder pursuit of many sorts of violations, not photography related. It might be worth it for him to keep tabs on what happens with that law, and if there are ever any hearings or proposals to change the law, etc. that's when and where he might have an opportunity present his situation to support why the law needs to be looked at and possibly changed.


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## Advanced Photo (Oct 29, 2016)

Copyright law allows for the use of copyrighted material for education. It is part of fair use.


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## vintagesnaps (Oct 29, 2016)

I don't think it was for educational use, seems like it was for public relations/promotional uses. It wasn't for a textbook, it was for a brochure.


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## Advanced Photo (Oct 29, 2016)

A brochure for the purpose of promoting education.
Some things, (like education and public debate) are a little more important than an artist getting a buck for copyrighted material use.


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## vintagesnaps (Oct 29, 2016)

I've been a teacher, and am an artist/photographer, there's a difference in the purpose but being used for education for promotional reasons shouldn't mean using someone's work without permission/compensation. But what seems to need to be addressed is the issue of not being compensated for his work and not being able to pursue that because of the sovereign immunity (which I haven't heard about so don't know if that exists here or not).


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## unpopular (Oct 29, 2016)

smoke665 said:


> The Supreme Court pretty much eliminated damages for  both copyright and patent infringement by a state agency under the Sovereign Immunity theory (yet another reason I believe the court is overstepping it's role in making law instead of ruling on constitutionality)



DISCLAIMER - The following is intended as conjecture and is not provided for informational, educational or legal purposes. I am not an attorney.

This is hardly the case here. The issue of state immunity *is* a constitutional issue, is discussed in the eleventh amendment (see U.S. Copyright Office: State Sovereign Immunity), which basically says that citizens from of one state cannot sue another state without it's permission, and by extension states cannot be sued in federal court by individuals per Parden v. Terminal Rail Company (FindLaw's United States Supreme Court case and opinions.).

What I think @smoke665 is referring to here is that in the late 20th century a number of clarifications were made that explicitly excludes states from immunity in copyright cases, known as Copyright Remedy Clarification Act [CRCA]. Unfortunately constitutional law supersedes legislation (and it should) and the court found that this was unconstitutional - why are states immune from some federal lawsuits, yet not others? (U.S. Copyright Office: State Sovereign Immunity)

I think that the issue is more in the language of the 11th amendment, rather than in the courts decision to uphold it. In fact, I think that if the court had decided otherwise it would have been very much legislating from the bench, as there is really no rational reason to assume that CRCA was constitutional in the first place.

U.S. Copyright Office: State Sovereign Immunity does cover "possible solutions" to address the problem, but I have not read this yet.


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## smoke665 (Oct 29, 2016)

unpopular said:


> DISCLAIMER - The following is intended as conjecture and is not provided for informational, educational or legal purposes. I am not an attorney.



I was to lazy to type all of your disclaimer so I'll just say ditto. LOL Though I have stayed at a Holiday Inn Express before.

The US Government specifically waived it's Sovereign Immunity protection from copyright infringement in 28 USC 1498 (b) and provided a path for action through the US Court Of Federal Claims. It also limited liability for claims to "reasonable and minimum statutory damages" and prevents recovery of legal fess. (go figure).

The Copyright Remedy Clarification Act (1990) sought to impose the same waiver of Sovereign Immunity on the states as the Feds. This is where the courts have intervened based on elements of  the 11th and 14th amendments, to shut them down, and leaving the owners of both copyrights and patents screwed as to enforcing their rights.

While it can be argued that Sovereign Immunity can still extend to the state in the event an employee violates federal law, as it is presumed the state did not grant, nor instruct the employee to violate federal law. Said immunity does not extend to the employee where they have acted beyond the scope of their authority (violating federal law). Which is why you may still have a case against the employee (individually)  even for an employee related act, so long as the state is not responsible for any claim rendered.


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## Advanced Photo (Oct 29, 2016)

If you don't want images used without compensation, don't make it possible by posting them on the internet. The best offense is a strong defense. Defend your images and make sure this doesn't happen, then you never have to worry. I never post images I may one day want to sell, and that's all my images. lol


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## Overread (Oct 29, 2016)

Advanced Photo said:


> The best offense is a strong defense. Defend your images



Challenging copyright abuse through the legal system IS defending your rights and your photography. Not posting it online or not making it publicly visible isn't so much protecting as side-stepping the problem. 

Sure it works, but at the same time its terribly limiting to the individual. Furthermore with the legal protections we have it shouldn't be an issue; one should have sufficient protection to recoup lost income and to protect the copyright of their creative work.


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## Advanced Photo (Oct 29, 2016)

Overread said:


> Advanced Photo said:
> 
> 
> > The best offense is a strong defense. Defend your images
> ...


Should, but you don't always. If they can't steal it it won't be stolen. Simple fact.


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## astroNikon (Oct 29, 2016)

I didn't read the article, but I find it odd that educational institutions go to the end of the earth to protect copyright their school logo and everything else they do, and yet just grab things to use as their own.


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## Advanced Photo (Oct 29, 2016)

The brochure was made by another party and sold to the school.


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## unpopular (Oct 29, 2016)

Advanced Photo said:


> The brochure was made by another party and sold to the school.



That changes everything (well, maybe), and would explain why the university isn't responding.


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## tirediron (Oct 29, 2016)

Advanced Photo said:


> A brochure for the purpose of promoting education.
> Some things, (like education and public debate) are a little more important than an artist getting a buck for copyrighted material use.


Ummmm... really?  Advertising isn't education and with the prices they appear to be charging, they've got not claim to being a "poor school", and the removal of someone's watermark is certainly NOT covered by fair use.


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## tirediron (Oct 29, 2016)

unpopular said:


> Advanced Photo said:
> 
> 
> > The brochure was made by another party and sold to the school.
> ...


I wonder if it does...  I don't know.


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## unpopular (Oct 29, 2016)

I agree. This is something that has always confused me. When hire an ad agency to provide media we assume that the media that they are providing is legally obtained, and the party that actually did the copying in the first place was the ad agency. No doubt that if this person were serious about this lawsuit, his or her attorney would have sued the ad agency along with the university.

At the same time, if the University insisted on using this image and explicitly instructed the designer to remove the name, that would further complicate matters. As might licensing.


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## Advanced Photo (Oct 30, 2016)

They used to have a competition for the brochure layout and let individuals submit their entries so if that is how it is still done, it wasn't an ad agency and it was just a private graphic artist that won the competition. No deep pockets there to go after if the photographer is just looking for a payday so he wanted to sue the institution (State).


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## snowbear (Oct 30, 2016)

I guess infringement hasn't made it as a hot enough topic for governments to address it in bid and contract requirements.


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## tirediron (Oct 30, 2016)

Advanced Photo said:


> They used to have a competition for the brochure layout and let individuals submit their entries so if that is how it is still done, it wasn't an ad agency and it was just a private graphic artist that won the competition. No deep pockets there to go after if the photographer is just looking for a payday so he wanted to sue the institution (State).


So if this had happened to you, you'd be cool with it?


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## KmH (Oct 30, 2016)

Advanced Photo said:


> Copyright law allows for the use of copyrighted material for education. It is part of fair use.


Copyright fair use is not anywhere close to being that straight forward.
The US Copyright office notes that fair use is adjudicated by the federal courts on a case-by-case basis.

Columbia University Fair Use Checklist


> The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair.  Each factor should be given careful consideration in analyzing any specific use.  There is no magic formula; an arithmetic approach to the application of the four factors should not be used.  Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.


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## Advanced Photo (Oct 31, 2016)

> Your post in the thread University of Houston Illegally uses image and doesn't care!was deleted. Reason: Sorry; I was replying to your thread morning and accidentally pressed 'Edit' instead of 'Reply' and f**ked it all up. VERY sorry, and purely unintental.


First off, no problem, apology accepted, stuff happens, thanks for letting me know so I can re-post..
OK, in a nutshell: 


tirediron said:


> Advanced Photo said:
> 
> 
> > They used to have a competition for the brochure layout and let individuals submit their entries so if that is how it is still done, it wasn't an ad agency and it was just a private graphic artist that won the competition. No deep pockets there to go after if the photographer is just looking for a payday so he wanted to sue the institution (State).
> ...



Yes, I'd be inconvenienced but I'd have to accept at least part of the responsibility for it if I made the images accessible and unguarded. 

If I leave the keys in my car and it's stolen, it's at least a little bit my fault, in fact the insurance won't pay for it at all because I caused it to happen.

If I sold image insurance and this person tried to collect because of the theft, I'd be forced to deny the claim based on the fact they did not do the things in their power to protect their property well enough to try to prevent it. 

You have to at least make an attempt to protect your property and not just rely on the law to always work, sometimes it just doesn't.


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## KmH (Oct 31, 2016)

I've not seen any reference that the photographer, Jim Olive, registered his copyright to the photo with the US Copyright office.
Many copyright legal experts say that a common mistake many photographers make when they discover someone using one of their photos without permission is to proffer a bill for use of the image.

So what _*should*_ you do?
Help! I’ve Been Infringed! |

But because of the upside down situation regarding 'sovereign immunity' I would have to say, "Mr. Olive is SOL". trying to get paid for the use of the photo he made.


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## unpopular (Oct 31, 2016)

Advanced Photo said:


> They used to have a competition for the brochure layout and let individuals submit their entries so if that is how it is still done, it wasn't an ad agency and it was just a private graphic artist that won the competition. No deep pockets there to go after if the photographer is just looking for a payday so he wanted to sue the institution (State).



From a legal standpoint I don't know if it would matter, especially if the contest rules prohibits copyright infringement. OTOH, it might. If the college and the graphic artist do not have a proper client/provider relationship. That too would through a monkey wrench into things.

And this all depends on if the designer has a duty to disclose infringements (and I'm sure that they do). But I don't know if that duty would exist if the designer isn't technically hired or not (I'd imagine that they would, but again, I just don't know).

If this is the case, this is probably far too messy for any attorney to take on and make any money, and that probably has more to do with it than any state immunity issues - which only adds to the confusion.Even if The University could be sued, all they'd have to say is that they accepted the pamphlet design in good faith that it was legal.


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