throbber
IN THE SUPREME COURT OF TEXAS
`4444444444
`No. 19-0605
`4444444444
`
`JIM OLIVE PHOTOGRAPHY D/B/A/ PHOTOLIVE, INC., PETITIONER
`
`V.
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`UNIVERSITY OF HOUSTON SYSTEM, RESPONDENT
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`444444444444444444444444444444444444444444
`ON PETITION FOR REVIEW FROM THE
`COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
`444444444444444444444444444444444444444444
`
`Argued February 25, 2021
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`JUSTICE DEVINE delivered the opinion of the Court.
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`JUSTICE BUSBY filed a concurring opinion in which JUSTICE LEHRMANN joined and in
`which JUSTICE BLACKLOCK joined as to part II.
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`The issue in this interlocutory appeal from the denial of a plea to the jurisdiction is
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`whether a copyright infringement claim against a governmental entity may be maintained as a
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`constitutional takings claim. The court of appeals concluded “that a governmental unit’s
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`copyright infringement is not a taking and that the trial court therefore erred in denying the plea
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`to the jurisdiction.” 580 S.W.3d 360, 363 (Tex. App.—Houston [1st Dist.] 2019). Because we
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`agree that the violation of a copyright, without more, is not a taking of the copyright, we affirm.
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`I
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`Jim Olive Photography d/b/a Photolive, Inc. (Olive) is a professional photographer in
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`Houston, Texas. Olive took a series of aerial photographs of the City of Houston in 2005 and
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`displayed them on his website for purchase. Included in the series was a digital photograph
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`identified as SKDT1082—“The Cityscape.” Before displaying these photographs, Olive
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`registered them with the United States Copyright Office. Olive’s website describes the
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`applicable copyright protections and states that “[t]he unauthorized use of these images is strictly
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`prohibited.”
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`Olive alleges that sometime in June of 2012, the University of Houston downloaded a
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`copy of The Cityscape photograph from Olive’s website, removed all identifying copyright and
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`attribution material, and began displaying the photographic image on several webpages
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`promoting the University’s C.T. Bauer College of Business. The University did not seek Olive’s
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`permission to use The Cityscape photograph, and Olive did not discover that a copy was being
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`displayed on the University’s webpages until years later. After the discovery, Olive demanded
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`that the University cease and desist its unauthorized use, and the University immediately
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`removed the photograph from its website. The University, however, did not pay Olive for its use
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`of the digital copy on its website.
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`Olive sued the University of Houston, alleging that the University’s publication of his
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`photograph was an unlawful taking and sought compensation under Article I, Section 17 of the
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`Texas Constitution and under the Fifth Amendment of the United States Constitution. The
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`University answered and filed a plea to the jurisdiction, asserting its immunity from suit under
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`the doctrine of sovereign immunity. The trial court denied the University’s plea, prompting it to
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`pursue an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing
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`an interlocutory appeal from an order on the government’s jurisdictional plea).
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`The University argued in the court of appeals that (1) a copyright is not property under
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`the federal and state takings clauses, and (2) even if a copyright is property within the meaning
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`of the Takings Clause, Olive’s allegations of infringement do not state a cognizable taking. In
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`2
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`response, Olive argued that (1) the takings clauses protect all types of property, and (2) the
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`University’s appropriation and display of his copyrighted work was a per se taking that should
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`not be analyzed under the multi-factor test for regulatory takings. Agreeing with the University
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`“that a governmental unit’s copyright infringement is not a taking,” the court of appeals vacated
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`the trial court’s order denying the plea and dismissed the “cause for lack of subject-matter
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`jurisdiction.” 580 S.W.3d at 363, 377.
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`The court reasoned that the University’s single act of copyright infringement was not a
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`taking because it did not take away Olive’s right to use, license, or dispose of the underlying
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`creative work. Id. at 375–77. And while the University’s infringement may have cost Olive a
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`licensing fee, it did not rise to the level of a viable takings claim. Id. Olive appeals the court’s
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`decision.
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` II
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`Olive’s petition for review begins with the proposition that the Takings Clause protects
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`copyrights, as it does other types of intellectual property, from appropriation by the State and
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`that the court of appeals erred in determining otherwise. Quoting Black’s Law Dictionary, Olive
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`submits that “the court’s determination that copyrights are not protected by the Takings Clause
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`ignores the core property interest protected by a copyright: the ‘exclusive right to reproduce,
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`adapt, distribute, perform, and display the work.’” Copyright, BLACK’S LAW DICTIONARY (10th
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`ed. 2014).
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`We, however, do not read the court of appeals’ opinion to determine whether a copyright
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`is, or is not, a property interest protected by the Takings Clause. Although the court discusses
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`the case law and legal scholarship on the issue in some detail, it ultimately finds the cases
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`inconclusive on whether a copyright is a constitutionally protected property right, and the
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`3
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`scholars divided on whether it should be.1 580 S.W.3d at 366–75. And although the court
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`describes a copyright as a “protected property interest” for due process purposes, id. at 366, and
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`as “property with value to its owner” protected by a federal statutory cause of action for
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`infringement, id. at 375 (citing 17 U.S.C. §§ 501(a), 504)), it never decides whether a copyright
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`is also property protected by the Takings Clause. Instead, the court holds that the University’s
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`single act of copyright infringement—the governmental interference with property rights alleged
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`here—does not state a viable takings claim, but rather is akin to a transitory common law
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`trespass for which the state has not waived its immunity. Id. at 376.
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`A copyright2 is a form of intellectual property that subsists in works of authorship that
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`are original and are fixed in a tangible medium of expression. 17 U.S.C. § 102. Olive’s
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`photograph is such a work. So too are books, paintings, sculptures, and musical compositions to
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`name a few. Id. § 102(a). For a term consisting of the author’s life plus seventy years, the
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`owner of a copyright enjoys the five exclusive rights3 of reproduction, adaptation, distribution,
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`and public performance and display. Id. §§ 302(a), 106. Infringement occurs when a person or
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`entity exercises any of the owner’s exclusive rights in a creative work without authorization or
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`other legal defense. Id. §§ 501, 106.
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`It seems reasonably clear to some legal scholars “that the exclusive rights that federal
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`copyright law provides to authors and copyright owners qualify as a form of property for
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`1 We have received amicus briefs from Adam Mossoff, a professor of law at George Mason University, and
`J. Glynn Lunney, a professor of law at Texas A&M School of Law, expressing contrary views on the property rights that
`attach to a copyright. We have also received an amicus brief from the National Press Photographers Association and
`the American Society of Media Photographers, joined by several similar organizations, in support of the petition for
`review.
`
`2 The copyright clause of the United States Constitution authorizes Congress to grant authors a limited
`intangible property right in their creative works. See U.S. CONST. art. I, § 8, cl. 8. Pursuant to this authority, Congress
`enacted the Copyright Acts of 1909 and 1976. The Copyright Act of 1976 governs works fixed in tangible medium after
`1977. See 17 U.S.C. §§ 101–1511.
`3 The author’s exclusive rights in the work, however, are subject to certain defenses, such as fair use. See 17
`U.S.C. § 107 (providing limited defense for purposes such as criticism, comment, news reporting, teaching, scholarship,
`or research, in light of various specified factors); see also id. §§ 108–121 (setting forth additional limitations on exclusive
`rights).
`
`4
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`

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`purposes of takings law.”4 Others disagree.5 In Ruckelshaus v. Monsanto Co., 467 U.S. 986
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`(1984), the only recent Supreme Court case to deal with an alleged taking of intellectual
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`property, the Court extended the Fifth Amendment guarantee to trade secrets, evoking this
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`comment: “If trade secrets, one of the weakest forms of intellectual property, are protected by
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`the Fifth Amendment, then patents, copyrights, and trademarks must logically be protected as
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`well.”6
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`Assuming for our purposes that a copyright is property entitled to such protection, this
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`appeal questions whether pleading a copyright infringement claim against a state actor also
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`encompasses a per se takings claim under the federal and state constitutions.
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`III
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`Olive contends that it does. He argues that copyright infringement by a state actor is a
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`taking for which just compensation is owed under both the federal and state constitutions. He
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`maintains that his copyrighted work, although intangible, is a species of personal property,
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`which is entitled to the same protection from direct governmental appropriation as other types of
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`tangible property. Olive’s pleadings allege that the University
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`without any independent verification of the rights to The Cityscape photograph,
`placed [Olive’s] copyrighted image into circulation with no attribution or other
`protections whatsoever. Indeed, upon information and belief, [the University]
`intentionally or knowingly removed identifying material from The Cityscape
`before uploading it onto its webpages.
`
`4 John T. Cross, Suing the States for Copyright Infringement, 39 BRANDEIS L.J. 337, 390 (2001); see also Adam
`Mossoff, Patents as Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause,
`87 B.U. L. REV. 689, 693 (2007); Paul J. Heald & Michael L. Wells, Remedies for the Misappropriation of Intellectual
`Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Other
`Immunity Doctrines, 55 WASH. & LEE L. REV. 849, 855–57 (1998).
`5 See, e.g., Tom W. Bell, Copyright As Intellectual Property Privilege, 58 SYRACUSE L. REV. 523, 538 (2008)
`(“The right to receive just compensation for governmental takings has long represented a hallmark of property. Does
`copyright afford such a right? The exact question remains as yet unlitigated and, thus, still subject to dispute.”); Davida
`H. Isaacs, Not All Property Is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and
`Why They Are Right to Do So, 15 GEO. MASON L. REV. 1, 28–29 (2007) (“Forms of ‘property’ established solely as a
`matter of governmental discretion, such as patents, may be entitled to procedural due process protection, but are not
`automatically entitled to Takings Clause protection.”).
`6 Heald & Wells, supra note 4, at 856.
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`5
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`Olive further alleges that the University’s publication of his photograph on its webpages, without
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`his permission, constitutes a taking of his property for public use in violation of the federal and
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`state constitutions. He argues that the University’s unauthorized use of his copyrighted work
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`amounts to a per se taking of his private property and that the multi-factor test for regulatory
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`takings is the wrong analytical framework to apply.
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`The University, which as movant has the burden of establishing the lack of subject-
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`matter jurisdiction,7 responds that copyright infringement is not a taking. Moreover, it is not a
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`per se taking, which the University contends arises under very narrow circumstances, such as
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`when the government acts to physically confiscate or occupy tangible property. The University
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`submits that, under the Copyright Act, an infringer violates the copyright owner’s rights, but it
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`does not confiscate or appropriate those rights. To the contrary, even during the infringement,
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`the copyright owner retains its right to possess, use, and dispose of the copyrighted work and to
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`exclude others from doing so, including officials of an infringing state entity. See Ex parte
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`Young, 209 U.S. 123 (1908) (providing for injunctive relief against government officials). The
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`University concludes that Olive’s retention of those rights during the alleged infringement
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`negates the existence of a taking, much less one that is per se.
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`A
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`The unlawful taking here is alleged under both the federal and state constitutions. “The
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`Just Compensation Clause of the Fifth Amendment provides that ‘private property [shall not] be
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`taken for public use, without just compensation.’” Mayhew v. Town of Sunnyvale, 964 S.W.2d
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`922, 933 (Tex. 1998) (quoting U.S. CONST. amend. V). The Texas Constitution’s takings clause
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`similarly provides that “[n]o person’s property shall be taken, damaged, or destroyed for or
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`7 See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (requiring the state to meet
`the summary judgment standard of proof); Dallas County v. Wadley, 168 S.W.3d 373, 377 (Tex. App.—Dallas 2005,
`pet. denied) (same).
`
`6
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`

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`applied to public use without adequate compensation being made, unless by the consent of such
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`person, . . .” TEX. CONST. art. I, § 17. Although our state takings provision is worded
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`differently, we have described it as “comparable” to the Fifth Amendment’s Just Compensation
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`Clause. Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006). And, Texas
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`“case law on takings under the Texas Constitution is consistent with federal jurisprudence.”
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`Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012). Indeed, the parties
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`draw no distinction between the two clauses and primarily rely on federal case law.8
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`A compensable taking does not arise whenever state action adversely affects private
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`property interests. Governments interfere with private property rights every day. Some of those
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`intrusions are compensable; most are not. The plaintiff asserting a taking must allege and
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`ultimately prove not only that the intrusion has affected property, but also that the government’s
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`conduct constitutes a compensable taking of private property for public use without just or
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`adequate compensation.
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`Other than formal condemnation proceedings, the government can generally “take”
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`property in two different ways. First, the government can physically appropriate or invade
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`property. Horne v. Dep’t of Agric., 576 U.S. 350, 359 (2015) (“physical appropriation”); Ark.
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`Game & Fish Comm’n v. United States, 568 U.S. 23, 38 (2012) (“physical invasion”). Second,
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`the government can regulate property so restrictively, or intrude on property rights so
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`extensively, that it effectively “takes” the property. Murr v. Wisconsin, 137 S. Ct. 1933, 1942
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`(2017). In either situation, the owner may seek compensation through an inverse-condemnation
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`action against the government. United States v. Clarke, 445 U.S. 253, 257 (1980).
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`“It is well settled that the Texas Constitution waives government immunity with respect
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`8 Regarding the Texas Constitution, we note that Olive alleges only that the University’s publication of his work
`“resulted in a taking . . . in violation of Article I, Section 17 .” He has not alleged that the University violated any other
`part of that section.
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`7
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`

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`to inverse-condemnation claims.” City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014).
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`But “[t]o plead inverse condemnation, a plaintiff must allege an intentional government act that
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`resulted in the uncompensated taking of private property.” Id. at 831. “A taking is the
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`acquisition, damage, or destruction of property via physical or regulatory means.” Id. “In the
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`absence of a properly pled takings claim, the state retains immunity” and “a court must sustain a
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`properly raised plea to the jurisdiction.” Id. at 830.
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`To determine whether a physical or regulatory interference with property constitutes a
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`taking, a court ordinarily undertakes a “situation-specific factual inquir[y].” Ark. Game, 568
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`U.S. at 32. For regulatory takings, this “‘ad hoc’” inquiry involves weighing multiple factors,
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`including the “economic impact of the regulation,” the “interference with reasonable
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`investment-backed expectations,” and the “character of the government action.” Horne, 576
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`U.S. at 360. Each factor “focuses directly upon the severity of the burden that government
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`imposes upon private property rights.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005).
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`A similar multi-factor balancing applies to some physical takings. Ark. Game, 568 U.S. at 38–39
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`(holding that courts consider multiple factors in deciding whether a “temporary physical
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`invasion” constitutes a taking); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
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`432 (1982) (cautioning that “physical invasion” takings are “subject to a balancing process”). A
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`“permanent physical occupation,” on the other hand, “is a government action of such a unique
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`character that it is a taking without regard to other factors that a court might ordinarily examine.”
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`Loretto, 458 U.S. at 432. This type of taking is termed “per se” because the government’s action
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`constitutes a taking without regard to other factors. A per se taking presents the strongest claim
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`for compensation and is an exception to the usual multi-factor takings analysis. Ark. Game, 568
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`U.S. at 31–32.
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`8
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`

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`B
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`Olive contends that copyright infringement fits the per se exception because it is
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`analogous to other confiscatory takings to which the rule applies. Olive maintains that the
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`University’s infringement deprived him of the exclusive right to control his work and that this
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`loss of control amounts to a taking that is comparable to a physical appropriation of tangible
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`property. For example, in Horne v. Department of Agriculture, the U.S. Supreme Court held that
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`the government’s appropriation of a percentage of a farmer’s raisin crop as part of a market
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`stabilization program constituted a taking per se, requiring compensation at fair market value.
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`536 U.S. at 361–62. Olive submits that just as each raisin in Horne was the Hornes’ personal
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`property, each reproduction of The Cityscape photograph is his. As such, the government’s
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`virtual appropriation and display of Olive’s copyrighted work is an “actual taking of possession
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`and control” of that reproduction that is just as complete as the physical appropriation of the
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`farmer’s raisins in Horne. See id. at 362.
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`The court of appeals found this analogy inapposite, noting that Horne involved the taking
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`of “tangible personal property, not intangible intellectual property.” 580 S.W.3d at 369. But
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`Olive claims that this distinction is immaterial. He points to Horne’s observation that the
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`Takings Clause “protects ‘private property’ without any distinction between different types.”
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`536 U.S. at 358.
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`But Horne was concerned with the physical taking of tangible things. The first question
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`posed in the case was whether the government’s “‘categorical duty’ under the Fifth Amendment
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`to pay just compensation when it ‘physically takes possession of an interest in property’ . . .
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`applies only to real property and not to personal property.” Id. at 357 (quoting Ark. Game, 568
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`U.S. at 31). The Court answered no, holding that the government’s appropriation of raisins
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`9
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`should be treated no differently than real property under the per se rule. Id. at 357–58. Tangible
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`property, both real and personal, were plainly the “different types” of private property referenced
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`in Olive’s quote from the case. The court of appeals’ statement that Horne makes “no attempt to
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`address intellectual property” is therefore correct. 580 S.W.3d at 369.
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`But this is not to say that intellectual property is not personal property or that it is not
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`entitled to protection. Clearly, in some circumstances it is. See, e.g., Ruckelshaus, 467 U.S. at
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`1003–04 (extending Fifth Amendment guarantee to trade secrets). What is less clear is whether,
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`or to what extent, state action may be asserted as a per se taking of an intellectual property right.
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`In Ruckelshaus, the U.S. Supreme Court applied a multi-factor regulatory taking analysis to
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`determine that a federal statute operated to effect a taking with respect to some, but not all, trade
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`secret information submitted to the government. See id. at 1005–16.
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`C
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`“Copyright,
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`like other forms of
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`intellectual property, challenges our common
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`understanding of property as it relates to tangible resources.” Pascale Chapdelaine, The Property
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`Attributes of Copyright, 10 BUFF. INTELL. PROP. L.J. 34, 51 (2014). When considering
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`allegations that such property has been taken, a court must be mindful of what the word
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`“property” means in the context of the Takings Clause.
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`Property refers not to a physical thing, but to “the group of rights inhering in the citizen’s
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`relation to the physical thing, as the right to possess, use and dispose of it.” United States v.
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`Gen. Motors Corp., 323 U.S. 373, 378 (1945). Property, then, is the bundle of rights that
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`describe one’s relationship to a thing and not the thing itself. See Lightning Oil Co. v. Anadarko
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`E&P Onshore, LLC, 520 S.W.3d 39, 48 (Tex. 2017) (describing property “as a bundle of rights,
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`or a bundle of sticks”); cf. 17 U.S.C. § 202 (distinguishing between ownership of a copyright and
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`10
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`ownership of any material object in which the work is embodied). This distinction has added
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`significance in intellectual property cases. Professor Cross explains:
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`Things themselves are not property. Although we typically refer to land, chattels,
`accounts, and various other things as our “property,” what we are actually
`referring to is the bundle of rights that we have in those things. At some point, a
`person’s rights in a thing will reach a level where the law concludes that his
`interest in that thing is a property interest. . . .
`
`This distinction between things and property is often of little consequence
`in the typical takings case. If the State seizes my automobile, it has also by
`definition interfered with my “property”: my right to possess and use that
`automobile. In a takings claim involving intellectual property, however, the
`distinction between things and property becomes more important. Because the
`“thing” is intangible, use of or damage to that thing need not have any significant
`impact on the owner’s legal rights in the thing.
`
`John T. Cross, Suing the States for Copyright Infringement, 39 BRANDEIS L.J. 337, 395 (2001).
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`As Olive has pleaded and presented this case, the property at issue is the copyright,
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`which is the bundle of rights Olive has in The Cityscape photograph; it is not Olive’s original
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`photograph or the unauthorized copy displayed on the University’s website. And the question is
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`whether the University’s unauthorized use of a copy amounts to a taking of the copyright itself.
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`Copyright infringement occurs when “[a]nyone . . . violates any of the exclusive rights of
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`the copyright owner,”9 and Olive equates infringement by the State to a per se taking of the
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`copyright. Olive submits that the unauthorized posting of a copy of The Cityscape photograph
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`on University websites was “akin to a physical invasion” that deprived it of “the core right
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`guaranteed by [its] copyright: the right to exclude everyone from use of [its] copyrighted
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`materials and its exclusive right to reproduce and display the work.” Olive thus perceives
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`9 17 U.S.C. § 501(a). This section defines “anyone” to “include[] any State, any instrumentality of a State, and
`any officer or employee of a State or instrumentality of a State acting in his or her official capacity.” Id. The Supreme
`Court, however, has recently ruled that the inclusion of the States here is an invalid abrogation of the States’ Eleventh
`Amendment immunity. See Allen v. Cooper, 140 S. Ct. 994 (2020) (holding that neither Congress’s power under the
`Intellectual Property Clause to provide copyright protection nor Congress’s authority to enforce the commands of the
`Fourteenth Amendment’s Due Process Clause authorized Congress to abrogate the States’ Eleventh Amendment
`immunity from copyright infringement suits in the Copyright Remedy Clarification Act).
`
`11
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`

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`infringement not as a mere violation of his copyright but as a loss of control over his copyrighted
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`material, similar to the loss that a private property owner bears when the government physically
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`occupies real property or physically appropriates tangible personal property.
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`Infringement of a copyright, however, is different than a typical appropriation of tangible
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`property where rights are more closely bound to the physical thing. In a per se taking, the
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`government’s “appropriation of property” means the property was “actually occupied or taken
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`away” from the owner. Horne, 576 U.S. at 360, 361. It is an “‘actual taking of possession and
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`control’” by the government. Id. at 362 (quoting Loretto, 458 U.S. at 431). But an act of
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`copyright infringement by the government does not take possession or control of, or occupy, the
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`copyright.
`
`A copyright is a “bundle of exclusive rights” conferred and governed by the Copyright
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`Act. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546–47 (1985). Under the
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`Act, the government’s violation of those rights does not destroy them. The Act provides that “no
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`action by any governmental body or other official or organization purporting to seize,
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`expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the
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`exclusive rights under a copyright, shall be given effect under this title.” 17 U.S.C. § 201(e).
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`The copyright owner thus retains the key legal rights that constitute property for purposes of a
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`per se takings analysis, despite the government’s interference.10
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`Similarly, the government’s unauthorized use of a copy of the copyrighted work is not an
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`“actual taking of possession and control” of the copyright. Horne, 576 U.S. at 362. While an
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`infringer “invades a statutorily defined province guaranteed to the copyright holder alone,” it
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`10 We express no view regarding whether a government’s exercise of rights in violation of this statute could rise
`to the level of a regulatory taking. Professor Cross, however, recognizes that some copyright infringements can have
`a significant impact on the value of a copyright, and he argues that the copyright owner should recover for a regulatory
`taking if most of the copyright’s value is lost. Cross, supra note 4 at 396–97. But he also observes that “most state
`infringements do not destroy the lion’s share of a work’s value,” and therefore “most will not rise to the level of a
`constitutional taking.” Id. at 399.
`
`12
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`

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`“does not assume physical control over the copyright.” Dowling v. United States, 473 U.S. 207,
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`217 (1985); see also John T. Cross, Intellectual Property and the Eleventh Amendment After
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`Seminole Tribe, 47 DEPAUL L. REV. 519, 548 (1998) (explaining that the government does not
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`“take over” the copyright when it infringes).
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`Finally, the government’s copyright infringement does not result in the “physical
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`occupation” of property required for a per se taking. Loretto, 458 U.S. at 441. “[A] copyright
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`[is] in and of itself an intangible thing.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30,
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`36 n.4 (2d Cir. 2010). Thus, while an infringer violates the owner’s rights, it “does not assume
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`physical control over the copyright.” Dowling, 473 U.S. at 217; see also Alimanestianu v.
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`United States, 888 F.3d 1374, 1382–83 (Fed. Cir. 2018) (holding that government action
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`impairing the intangible right in a cause of action “is not a physical invasion of property”
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`required for a per se taking).
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`Copyright infringement not only lacks the key features of a per se taking; it also does not
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`implicate the reasons for creating a per se rule in the first place. It is the physical appropriation
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`of property that justifies the per se rule because it is “perhaps the most serious form of invasion
`
`of an owner’s property interests.” Loretto, 458 U.S. at 435. What makes it so serious is the
`
`effect on the owner’s bundle of property rights. Id. “[W]here an owner possesses a full ‘bundle’
`
`of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the
`
`aggregate must be viewed in its entirety.” Andrus v. Allard, 444 U.S. 51, 65–66 (1979). But
`
`with a physical appropriation of property, the government “does not simply take a single ‘strand’
`
`from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of every strand.”
`
`Loretto, 458 U.S. at 435 (citing Andrus, 444 U.S. at 65–66).
`
`Specifically, that sort of appropriation “effectively destroys each” strand in the
`
`13
`
`

`

`bundle—the rights “to possess, use and dispose of” the appropriated property. Id. (quoting Gen.
`
`Motors Corp., 323 U.S. at 378). The owner loses the right not only to possess the appropriated
`
`property, but also “to exclude the occupier from possession and use” of it. Id. And the
`
`appropriation “forever denies the owner any power to control the use of the property; he not only
`
`cannot exclude others, but can make no nonpossessory use of the property.” Id. at 436. Finally,
`
`even if the owner retains the right to dispose of the appropriated property, the government’s
`
`occupation “will ordinarily empty the right of any value, since the purchaser will also be unable
`
`to make any use of the property.” Id.
`
`This justification for the per se rule “is equally applicable to a physical appropriation of
`
`personal property.” Horne, 576 U.S. at 360. Thus, the federal agriculture marketing program in
`
`Horne, which required raisin growers to reserve a portion of their crop for the government
`
`without compensation was a taking. Id. at 361–64. Moreover, the “reserve requirement” was a
`
`per se taking, the Court held, because those growers “lose the entire ‘bundle’ of property rights
`
`in the appropriated raisins—‘the rights to possess, use and dispose of’ them.” Id. at 361–62
`
`(quoting Loretto, 458 U.S. at 435). Again, the per se rule applies when the entire bundle of
`
`rights in the appropriated property, not just a strand, is impaired by government action.
`
`But Olive argues that “exclusivity” is the core component of each specific right granted
`
`under the Copyright Act. And, by reproducing and displaying Olive’s photograph, without
`
`permission, the University deprived Olive of his exclusive right to control his work, thus
`
`depriving Olive of the most important stick in his bundle of rights. Olive contends that even if
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`the University “did not take Olive’s entire bundle of rights [that] does not mean that a taking has
`
`not occurred.” Perhaps not, but neither does it indicate the existence of a per se taking.
`
`As already discussed, infringement by the government does not necessarily destroy any
`
`14
`
`

`

`of the copyright owner’s rights in the copyright. It does not deprive the copyright owner of the
`
`right to possess and use the copyrighted work. See Dowling, 473 U.S. at 217 (“The infringer
`
`invades a statutorily defined province guaranteed to the copyright holder alone. But he does not
`
`assume physical control over the copyright; nor does he wholly deprive its owner of its use.”).
`
`Rather, copyright is “nonrivalrous,” meaning that “another person can use it without
`
`simultaneously depriving anyone else of its use.” Thomas F. Cotter, Do Federal Uses of
`
`Intellectual Property Implicate the Fifth Amendment?, 50 FLA. L. REV. 529, 562–63 (1998).
`
`Nor does the government’s infringement deny the copyright owner the right to exclude
`
`third parties. Because the owner retains the copyright in the original work, it “may still turn to
`
`the copyright laws to prevent third parties from using or copying that original.” Cross, supra
`
`note 4, at 396. Specifically, the owner may seek injunctive relief “to prevent or restrain
`
`infringement of a copyright.” 17 U.S.C. § 502(a). And, injunctive relief is available against the
`
`infringing government itself for violating the owner’s rights. See Seminole Tribe of Fla. v.
`
`Florida, 517 U.S. 44, 72 n.16 (1996) (explaining that “an individual may obtain injunctive relief
`
`under Ex parte Young in order to remedy a state officer’s ongoing violation of federal law,”
`
`including “copyright” law).11
`
`The government’s infringement also does not deprive the copyright owner of the right to
`
`dispose of the copyrighted work. Because copyright is nonrivalrous, the govern

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