Texas Sovereign Immunity Copyright Theft SCOTUS

Dear Friends,

It may sound preposterous, but it’s a fact. In Texas, state institutions such as universities, departments and various agencies, can take your creative work and use it without remuneration, attribution or permission. As a professional photographer, such a theft happened to me. Over the past 20 years, there have been dozens of so-called “sovereign immunity” cases brought against Texas state institutions. They’ve involved not only the theft of copyright, but also of patents and trademarks. It’s time we put an end to this wrongdoing.

Last month, the Supreme Court of Texas held that the State of Texas can use my copyrighted materials for three years without paying a dime in compensation. We are seeking review of this decision in the United States Supreme Court, and need assistance with the funding. In addition to the $200,000 in legal costs I have already incurred, the next step in this battle will require several thousand dollars in printing costs, as well as the additional attorney time needed to draft our petition for certiorari. This GoFundMe has been created to help cover the costs of this effort, which seeks to protect holders of copyrighted, patents and trademarks from suffering the same uncompensated appropriation of their work by the State of Texas that I have been forced to endure.

Let me tell you my story to clarify the issue for you. I’ve been a full-time photographer for over 50 years in Houston. I have a wide range of clients, including corporations, city governments, healthcare, advertising agencies and PR firms. I also shoot for international publications, including Time-Life, Bild, Stern, NewsWeek among others, along with oil and gas companies. One of my specialties is skylines. In Houston new skyline shots must be taken frequently because the cityscape changes often due to construction of new office buildings, high rise apartments and sports facilities.

One late afternoon I hired a helicopter to shoot new aerial shots of the city. I needed to be in position early for a twilight shot so I was strapped in by a harness so I could lean way out to get unique angles. As usual, I snapped hundreds of digital pictures. One turned out to be a jewel. The city and its ribbon of freeways looked extremely alluring in the early evening light. In post-production, where I further refined the image, I gave myself a fist pump. I had created a winner!

I posted the image on my company’s website, www.stockyard.com. That’s where I sell most of my pictures. I have thousands of images there divided into numerous categories. They represent a lifetime of work. Several customers licensed the new skyline shot. All seemed well. Then Image Rights, a service that searches the web for copyright infringements of my images, spotted that the C.T. Bauer College of Business at the University of Houston was using the skyline shot for marketing purposes. The University of Houston hadn’t approached me about using it or paying to license it. To add insult to injury, Forbes magazine pirated it from the University website and used it on the Forbes Mexico website and gave UH credit for my image.

Upset? Of course. I contacted administrators at the business school and demanded payment for multiple uses of the picture. They offered me $50. That was an insult. I demanded more to help cover my helicopter costs and damages for the unauthorized use of my image. The school then pulled a rabbit out of its hat, a maneuver State of Texas institutions have long used—“sovereign immunity.” I was brushed aside. They’d pay me nothing. Sovereign immunity is a judicial doctrine that prevents state institutions, including universities, from being sued. That is, unless a judge gives his or her approval. Sovereign immunity stems from old English law that maintains the “sovereign can do no wrong.”

After negotiations with the university failed, my attorneys sued the State of Texas for ‘taking’ my property. We initially prevailed, with the state court district judge, Caroline E. Baker, holding that sovereign immunity does not apply and that I could sue the business school. She said that the Texas Constitution “prohibits governmental agencies from taking private property without adequate compensation” and allow us to proceed with our case -- the first time ever in the legal history of the State of Texas.

Unfortunately on June 11, 2018, the State of Texas appealed the decision and the Court of Appeals ruled against me. It basically said I had “no recourse” against the university and its theft of my property. Adding to this painful defeat, the legal costs incurred in taking the case to the Texas Court of Appeals was $125,000. That decision was affirmed by the Supreme Court of Texas just three weeks ago.

The only recourse I have left is to file a petition for certiorari with the Supreme Court of the United States, in the hope that they will provide the relief that was denied to me by the courts of the State of Texas. It’s vitally important that I win—not just for me, but for every holder of intellectual property who does not wish to grant the State an exclusive, royalty-free license to their work.

I’ve learned the hard way that any creative individual can have their work infringed upon by the various arms of the State of Texas, including the Texas Department of Transportation, the medical schools and hospitals, Texas Parks and Wildlife, and the universities and other state entities. Creative individuals have no legal way to protect themselves from this pirating of their work. If you’re a creative person living and working outside the state, your copyrighted work can be taken, too!

YOUR SUPPORT BADLY NEEDED