Jim Olive Photography, D/B/A Photolive, Inc. v. University of Houston System, 19-0605

Background

Jim Olive Photography sued the University of Houston System, alleging the University's publication of his photograph constituted a per se taking of his copyright under the U.S. and Texas Constitutions.
Olive pleaded only a per se taking (not a regulatory Penn Central claim) and did not advance distinct theories under Texas’s “damaged” or “applied to public use” constitutional prongs.
The Court affirmed dismissal based on sovereign immunity, holding Olive failed to allege a per se taking under federal or Texas takings doctrine.
Justice Busby concurred, agreeing with the outcome but emphasizing that intellectual property is property under the Takings Clause and that per se rules—developed for tangible real property—do not map neatly onto intangible IP.
Busby noted Ruckelshaus used a modified Penn Central multi-factor analysis for trade secrets and observed Texas’s Article I, §17(a) adds the verbs “damaged,” “destroyed,” and “applied,” which may provide broader protection than the federal clause in some circumstances.
He declined to decide whether particular factual scenarios (e.g., a university streaming copyrighted films or distributing unauthorized copies) would trigger compensation under Texas’s “damaged” or “applied” prongs because Olive did not plead those claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether University’s publication of photograph is a per se taking of copyright under the Fifth Amendment	Olive: Publication appropriated exclusive rights and is a per se taking	University: No per se taking; sovereign immunity bars suit	Court: Olive failed to allege a per se taking; claim dismissed on sovereign immunity grounds
Whether federal per se takings categories (physical appropriation; total loss of economic use) apply to copyrights	Olive: Per se rules should extend to copyrights	University: Per se categories were developed for tangible property and don’t apply	Court/Busby: Per se rules do not readily translate to intangible IP; Olive disavowed regulatory takings, so claim fails
Whether intellectual property generally is protected by the Takings Clause	Olive: Copyright is property protected by Takings Clause	University: Implicitly conceded that IP can be property but contested per se fit	Court/Busby: IP is property for Takings Clause purposes, but the test for takings differs for intangible property
Whether Texas Constitution’s Article I, §17(a) provides broader protection ("taken, damaged, destroyed, applied") that could cover copyright harms	Olive: Did not press distinct Texas “damaged” or “applied” claims	University: No separate Texas-based takings claim advanced	Busby (concurring): Texas text and precedent allow potentially broader relief under "damaged"/"applied," but Olive did not plead those theories; no decision on hypotheticals

Key Cases Cited

Horne v. Dep’t of Agric., 576 U.S. 350 (2015) (personal property can receive physical-appropriation takings protection)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation is a categorical taking)
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (trade secrets are property; modified Penn Central analysis applied to intellectual property)
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978) (multi-factor regulatory-takings framework)
Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (total loss of economically beneficial use can be a categorical taking)
Allen v. Cooper, 140 S. Ct. 994 (2020) (affirming that copyrights are a form of property while addressing Eleventh Amendment limits)
Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980) (Texas Constitution’s “damaged”/“destroyed” language interpreted to extend compensation beyond classic takings)
City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004) (recognizing separate claims under Article I, §17 for taking, damaging, and destroying)