`4444444444
`No. 19-0605
`4444444444
`
`JIM OLIVE PHOTOGRAPHY D/B/A/ PHOTOLIVE, INC., PETITIONER
`
`V.
`
`UNIVERSITY OF HOUSTON SYSTEM, RESPONDENT
`
`444444444444444444444444444444444444444444
`ON PETITION FOR REVIEW FROM THE
`COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
`444444444444444444444444444444444444444444
`
`Argued February 25, 2021
`
`JUSTICE DEVINE delivered the opinion of the Court.
`
`JUSTICE BUSBY filed a concurring opinion in which JUSTICE LEHRMANN joined and in
`which JUSTICE BLACKLOCK joined as to part II.
`
`The issue in this interlocutory appeal from the denial of a plea to the jurisdiction is
`
`whether a copyright infringement claim against a governmental entity may be maintained as a
`
`constitutional takings claim. The court of appeals concluded “that a governmental unit’s
`
`copyright infringement is not a taking and that the trial court therefore erred in denying the plea
`
`to the jurisdiction.” 580 S.W.3d 360, 363 (Tex. App.—Houston [1st Dist.] 2019). Because we
`
`agree that the violation of a copyright, without more, is not a taking of the copyright, we affirm.
`
`I
`
`Jim Olive Photography d/b/a Photolive, Inc. (Olive) is a professional photographer in
`
`Houston, Texas. Olive took a series of aerial photographs of the City of Houston in 2005 and
`
`displayed them on his website for purchase. Included in the series was a digital photograph
`
`
`
`identified as SKDT1082—“The Cityscape.” Before displaying these photographs, Olive
`
`registered them with the United States Copyright Office. Olive’s website describes the
`
`applicable copyright protections and states that “[t]he unauthorized use of these images is strictly
`
`prohibited.”
`
`Olive alleges that sometime in June of 2012, the University of Houston downloaded a
`
`copy of The Cityscape photograph from Olive’s website, removed all identifying copyright and
`
`attribution material, and began displaying the photographic image on several webpages
`
`promoting the University’s C.T. Bauer College of Business. The University did not seek Olive’s
`
`permission to use The Cityscape photograph, and Olive did not discover that a copy was being
`
`displayed on the University’s webpages until years later. After the discovery, Olive demanded
`
`that the University cease and desist its unauthorized use, and the University immediately
`
`removed the photograph from its website. The University, however, did not pay Olive for its use
`
`of the digital copy on its website.
`
`Olive sued the University of Houston, alleging that the University’s publication of his
`
`photograph was an unlawful taking and sought compensation under Article I, Section 17 of the
`
`Texas Constitution and under the Fifth Amendment of the United States Constitution. The
`
`University answered and filed a plea to the jurisdiction, asserting its immunity from suit under
`
`the doctrine of sovereign immunity. The trial court denied the University’s plea, prompting it to
`
`pursue an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing
`
`an interlocutory appeal from an order on the government’s jurisdictional plea).
`
`The University argued in the court of appeals that (1) a copyright is not property under
`
`the federal and state takings clauses, and (2) even if a copyright is property within the meaning
`
`of the Takings Clause, Olive’s allegations of infringement do not state a cognizable taking. In
`
`2
`
`
`
`response, Olive argued that (1) the takings clauses protect all types of property, and (2) the
`
`University’s appropriation and display of his copyrighted work was a per se taking that should
`
`not be analyzed under the multi-factor test for regulatory takings. Agreeing with the University
`
`“that a governmental unit’s copyright infringement is not a taking,” the court of appeals vacated
`
`the trial court’s order denying the plea and dismissed the “cause for lack of subject-matter
`
`jurisdiction.” 580 S.W.3d at 363, 377.
`
`The court reasoned that the University’s single act of copyright infringement was not a
`
`taking because it did not take away Olive’s right to use, license, or dispose of the underlying
`
`creative work. Id. at 375–77. And while the University’s infringement may have cost Olive a
`
`licensing fee, it did not rise to the level of a viable takings claim. Id. Olive appeals the court’s
`
`decision.
`
` II
`
`Olive’s petition for review begins with the proposition that the Takings Clause protects
`
`copyrights, as it does other types of intellectual property, from appropriation by the State and
`
`that the court of appeals erred in determining otherwise. Quoting Black’s Law Dictionary, Olive
`
`submits that “the court’s determination that copyrights are not protected by the Takings Clause
`
`ignores the core property interest protected by a copyright: the ‘exclusive right to reproduce,
`
`adapt, distribute, perform, and display the work.’” Copyright, BLACK’S LAW DICTIONARY (10th
`
`ed. 2014).
`
`We, however, do not read the court of appeals’ opinion to determine whether a copyright
`
`is, or is not, a property interest protected by the Takings Clause. Although the court discusses
`
`the case law and legal scholarship on the issue in some detail, it ultimately finds the cases
`
`inconclusive on whether a copyright is a constitutionally protected property right, and the
`
`3
`
`
`
`scholars divided on whether it should be.1 580 S.W.3d at 366–75. And although the court
`
`describes a copyright as a “protected property interest” for due process purposes, id. at 366, and
`
`as “property with value to its owner” protected by a federal statutory cause of action for
`
`infringement, id. at 375 (citing 17 U.S.C. §§ 501(a), 504)), it never decides whether a copyright
`
`is also property protected by the Takings Clause. Instead, the court holds that the University’s
`
`single act of copyright infringement—the governmental interference with property rights alleged
`
`here—does not state a viable takings claim, but rather is akin to a transitory common law
`
`trespass for which the state has not waived its immunity. Id. at 376.
`
`A copyright2 is a form of intellectual property that subsists in works of authorship that
`
`are original and are fixed in a tangible medium of expression. 17 U.S.C. § 102. Olive’s
`
`photograph is such a work. So too are books, paintings, sculptures, and musical compositions to
`
`name a few. Id. § 102(a). For a term consisting of the author’s life plus seventy years, the
`
`owner of a copyright enjoys the five exclusive rights3 of reproduction, adaptation, distribution,
`
`and public performance and display. Id. §§ 302(a), 106. Infringement occurs when a person or
`
`entity exercises any of the owner’s exclusive rights in a creative work without authorization or
`
`other legal defense. Id. §§ 501, 106.
`
`It seems reasonably clear to some legal scholars “that the exclusive rights that federal
`
`copyright law provides to authors and copyright owners qualify as a form of property for
`
`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
`
`
`
`purposes of takings law.”4 Others disagree.5 In Ruckelshaus v. Monsanto Co., 467 U.S. 986
`
`(1984), the only recent Supreme Court case to deal with an alleged taking of intellectual
`
`property, the Court extended the Fifth Amendment guarantee to trade secrets, evoking this
`
`comment: “If trade secrets, one of the weakest forms of intellectual property, are protected by
`
`the Fifth Amendment, then patents, copyrights, and trademarks must logically be protected as
`
`well.”6
`
`Assuming for our purposes that a copyright is property entitled to such protection, this
`
`appeal questions whether pleading a copyright infringement claim against a state actor also
`
`encompasses a per se takings claim under the federal and state constitutions.
`
`III
`
`Olive contends that it does. He argues that copyright infringement by a state actor is a
`
`taking for which just compensation is owed under both the federal and state constitutions. He
`
`maintains that his copyrighted work, although intangible, is a species of personal property,
`
`which is entitled to the same protection from direct governmental appropriation as other types of
`
`tangible property. Olive’s pleadings allege that the University
`
`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.
`
`5
`
`
`
`Olive further alleges that the University’s publication of his photograph on its webpages, without
`
`his permission, constitutes a taking of his property for public use in violation of the federal and
`
`state constitutions. He argues that the University’s unauthorized use of his copyrighted work
`
`amounts to a per se taking of his private property and that the multi-factor test for regulatory
`
`takings is the wrong analytical framework to apply.
`
`The University, which as movant has the burden of establishing the lack of subject-
`
`matter jurisdiction,7 responds that copyright infringement is not a taking. Moreover, it is not a
`
`per se taking, which the University contends arises under very narrow circumstances, such as
`
`when the government acts to physically confiscate or occupy tangible property. The University
`
`submits that, under the Copyright Act, an infringer violates the copyright owner’s rights, but it
`
`does not confiscate or appropriate those rights. To the contrary, even during the infringement,
`
`the copyright owner retains its right to possess, use, and dispose of the copyrighted work and to
`
`exclude others from doing so, including officials of an infringing state entity. See Ex parte
`
`Young, 209 U.S. 123 (1908) (providing for injunctive relief against government officials). The
`
`University concludes that Olive’s retention of those rights during the alleged infringement
`
`negates the existence of a taking, much less one that is per se.
`
`A
`
`The unlawful taking here is alleged under both the federal and state constitutions. “The
`
`Just Compensation Clause of the Fifth Amendment provides that ‘private property [shall not] be
`
`taken for public use, without just compensation.’” Mayhew v. Town of Sunnyvale, 964 S.W.2d
`
`922, 933 (Tex. 1998) (quoting U.S. CONST. amend. V). The Texas Constitution’s takings clause
`
`similarly provides that “[n]o person’s property shall be taken, damaged, or destroyed for or
`
`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
`
`
`
`applied to public use without adequate compensation being made, unless by the consent of such
`
`person, . . .” TEX. CONST. art. I, § 17. Although our state takings provision is worded
`
`differently, we have described it as “comparable” to the Fifth Amendment’s Just Compensation
`
`Clause. Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006). And, Texas
`
`“case law on takings under the Texas Constitution is consistent with federal jurisprudence.”
`
`Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012). Indeed, the parties
`
`draw no distinction between the two clauses and primarily rely on federal case law.8
`
`A compensable taking does not arise whenever state action adversely affects private
`
`property interests. Governments interfere with private property rights every day. Some of those
`
`intrusions are compensable; most are not. The plaintiff asserting a taking must allege and
`
`ultimately prove not only that the intrusion has affected property, but also that the government’s
`
`conduct constitutes a compensable taking of private property for public use without just or
`
`adequate compensation.
`
`Other than formal condemnation proceedings, the government can generally “take”
`
`property in two different ways. First, the government can physically appropriate or invade
`
`property. Horne v. Dep’t of Agric., 576 U.S. 350, 359 (2015) (“physical appropriation”); Ark.
`
`Game & Fish Comm’n v. United States, 568 U.S. 23, 38 (2012) (“physical invasion”). Second,
`
`the government can regulate property so restrictively, or intrude on property rights so
`
`extensively, that it effectively “takes” the property. Murr v. Wisconsin, 137 S. Ct. 1933, 1942
`
`(2017). In either situation, the owner may seek compensation through an inverse-condemnation
`
`action against the government. United States v. Clarke, 445 U.S. 253, 257 (1980).
`
`“It is well settled that the Texas Constitution waives government immunity with respect
`
`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.
`
`7
`
`
`
`to inverse-condemnation claims.” City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014).
`
`But “[t]o plead inverse condemnation, a plaintiff must allege an intentional government act that
`
`resulted in the uncompensated taking of private property.” Id. at 831. “A taking is the
`
`acquisition, damage, or destruction of property via physical or regulatory means.” Id. “In the
`
`absence of a properly pled takings claim, the state retains immunity” and “a court must sustain a
`
`properly raised plea to the jurisdiction.” Id. at 830.
`
`To determine whether a physical or regulatory interference with property constitutes a
`
`taking, a court ordinarily undertakes a “situation-specific factual inquir[y].” Ark. Game, 568
`
`U.S. at 32. For regulatory takings, this “‘ad hoc’” inquiry involves weighing multiple factors,
`
`including the “economic impact of the regulation,” the “interference with reasonable
`
`investment-backed expectations,” and the “character of the government action.” Horne, 576
`
`U.S. at 360. Each factor “focuses directly upon the severity of the burden that government
`
`imposes upon private property rights.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005).
`
`A similar multi-factor balancing applies to some physical takings. Ark. Game, 568 U.S. at 38–39
`
`(holding that courts consider multiple factors in deciding whether a “temporary physical
`
`invasion” constitutes a taking); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
`
`432 (1982) (cautioning that “physical invasion” takings are “subject to a balancing process”). A
`
`“permanent physical occupation,” on the other hand, “is a government action of such a unique
`
`character that it is a taking without regard to other factors that a court might ordinarily examine.”
`
`Loretto, 458 U.S. at 432. This type of taking is termed “per se” because the government’s action
`
`constitutes a taking without regard to other factors. A per se taking presents the strongest claim
`
`for compensation and is an exception to the usual multi-factor takings analysis. Ark. Game, 568
`
`U.S. at 31–32.
`
`8
`
`
`
`B
`
`Olive contends that copyright infringement fits the per se exception because it is
`
`analogous to other confiscatory takings to which the rule applies. Olive maintains that the
`
`University’s infringement deprived him of the exclusive right to control his work and that this
`
`loss of control amounts to a taking that is comparable to a physical appropriation of tangible
`
`property. For example, in Horne v. Department of Agriculture, the U.S. Supreme Court held that
`
`the government’s appropriation of a percentage of a farmer’s raisin crop as part of a market
`
`stabilization program constituted a taking per se, requiring compensation at fair market value.
`
`536 U.S. at 361–62. Olive submits that just as each raisin in Horne was the Hornes’ personal
`
`property, each reproduction of The Cityscape photograph is his. As such, the government’s
`
`virtual appropriation and display of Olive’s copyrighted work is an “actual taking of possession
`
`and control” of that reproduction that is just as complete as the physical appropriation of the
`
`farmer’s raisins in Horne. See id. at 362.
`
`The court of appeals found this analogy inapposite, noting that Horne involved the taking
`
`of “tangible personal property, not intangible intellectual property.” 580 S.W.3d at 369. But
`
`Olive claims that this distinction is immaterial. He points to Horne’s observation that the
`
`Takings Clause “protects ‘private property’ without any distinction between different types.”
`
`536 U.S. at 358.
`
`But Horne was concerned with the physical taking of tangible things. The first question
`
`posed in the case was whether the government’s “‘categorical duty’ under the Fifth Amendment
`
`to pay just compensation when it ‘physically takes possession of an interest in property’ . . .
`
`applies only to real property and not to personal property.” Id. at 357 (quoting Ark. Game, 568
`
`U.S. at 31). The Court answered no, holding that the government’s appropriation of raisins
`
`9
`
`
`
`should be treated no differently than real property under the per se rule. Id. at 357–58. Tangible
`
`property, both real and personal, were plainly the “different types” of private property referenced
`
`in Olive’s quote from the case. The court of appeals’ statement that Horne makes “no attempt to
`
`address intellectual property” is therefore correct. 580 S.W.3d at 369.
`
`But this is not to say that intellectual property is not personal property or that it is not
`
`entitled to protection. Clearly, in some circumstances it is. See, e.g., Ruckelshaus, 467 U.S. at
`
`1003–04 (extending Fifth Amendment guarantee to trade secrets). What is less clear is whether,
`
`or to what extent, state action may be asserted as a per se taking of an intellectual property right.
`
`In Ruckelshaus, the U.S. Supreme Court applied a multi-factor regulatory taking analysis to
`
`determine that a federal statute operated to effect a taking with respect to some, but not all, trade
`
`secret information submitted to the government. See id. at 1005–16.
`
`C
`
`“Copyright,
`
`like other forms of
`
`intellectual property, challenges our common
`
`understanding of property as it relates to tangible resources.” Pascale Chapdelaine, The Property
`
`Attributes of Copyright, 10 BUFF. INTELL. PROP. L.J. 34, 51 (2014). When considering
`
`allegations that such property has been taken, a court must be mindful of what the word
`
`“property” means in the context of the Takings Clause.
`
`Property refers not to a physical thing, but to “the group of rights inhering in the citizen’s
`
`relation to the physical thing, as the right to possess, use and dispose of it.” United States v.
`
`Gen. Motors Corp., 323 U.S. 373, 378 (1945). Property, then, is the bundle of rights that
`
`describe one’s relationship to a thing and not the thing itself. See Lightning Oil Co. v. Anadarko
`
`E&P Onshore, LLC, 520 S.W.3d 39, 48 (Tex. 2017) (describing property “as a bundle of rights,
`
`or a bundle of sticks”); cf. 17 U.S.C. § 202 (distinguishing between ownership of a copyright and
`
`10
`
`
`
`ownership of any material object in which the work is embodied). This distinction has added
`
`significance in intellectual property cases. Professor Cross explains:
`
`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).
`
`As Olive has pleaded and presented this case, the property at issue is the copyright,
`
`which is the bundle of rights Olive has in The Cityscape photograph; it is not Olive’s original
`
`photograph or the unauthorized copy displayed on the University’s website. And the question is
`
`whether the University’s unauthorized use of a copy amounts to a taking of the copyright itself.
`
`Copyright infringement occurs when “[a]nyone . . . violates any of the exclusive rights of
`
`the copyright owner,”9 and Olive equates infringement by the State to a per se taking of the
`
`copyright. Olive submits that the unauthorized posting of a copy of The Cityscape photograph
`
`on University websites was “akin to a physical invasion” that deprived it of “the core right
`
`guaranteed by [its] copyright: the right to exclude everyone from use of [its] copyrighted
`
`materials and its exclusive right to reproduce and display the work.” Olive thus perceives
`
`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
`
`
`
`infringement not as a mere violation of his copyright but as a loss of control over his copyrighted
`
`material, similar to the loss that a private property owner bears when the government physically
`
`occupies real property or physically appropriates tangible personal property.
`
`Infringement of a copyright, however, is different than a typical appropriation of tangible
`
`property where rights are more closely bound to the physical thing. In a per se taking, the
`
`government’s “appropriation of property” means the property was “actually occupied or taken
`
`away” from the owner. Horne, 576 U.S. at 360, 361. It is an “‘actual taking of possession and
`
`control’” by the government. Id. at 362 (quoting Loretto, 458 U.S. at 431). But an act of
`
`copyright infringement by the government does not take possession or control of, or occupy, the
`
`copyright.
`
`A copyright is a “bundle of exclusive rights” conferred and governed by the Copyright
`
`Act. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546–47 (1985). Under the
`
`Act, the government’s violation of those rights does not destroy them. The Act provides that “no
`
`action by any governmental body or other official or organization purporting to seize,
`
`expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the
`
`exclusive rights under a copyright, shall be given effect under this title.” 17 U.S.C. § 201(e).
`
`The copyright owner thus retains the key legal rights that constitute property for purposes of a
`
`per se takings analysis, despite the government’s interference.10
`
`Similarly, the government’s unauthorized use of a copy of the copyrighted work is not an
`
`“actual taking of possession and control” of the copyright. Horne, 576 U.S. at 362. While an
`
`infringer “invades a statutorily defined province guaranteed to the copyright holder alone,” it
`
`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
`
`
`
`“does not assume physical control over the copyright.” Dowling v. United States, 473 U.S. 207,
`
`217 (1985); see also John T. Cross, Intellectual Property and the Eleventh Amendment After
`
`Seminole Tribe, 47 DEPAUL L. REV. 519, 548 (1998) (explaining that the government does not
`
`“take over” the copyright when it infringes).
`
`Finally, the government’s copyright infringement does not result in the “physical
`
`occupation” of property required for a per se taking. Loretto, 458 U.S. at 441. “[A] copyright
`
`[is] in and of itself an intangible thing.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30,
`
`36 n.4 (2d Cir. 2010). Thus, while an infringer violates the owner’s rights, it “does not assume
`
`physical control over the copyright.” Dowling, 473 U.S. at 217; see also Alimanestianu v.
`
`United States, 888 F.3d 1374, 1382–83 (Fed. Cir. 2018) (holding that government action
`
`impairing the intangible right in a cause of action “is not a physical invasion of property”
`
`required for a per se taking).
`
`Copyright infringement not only lacks the key features of a per se taking; it also does not
`
`implicate the reasons for creating a per se rule in the first place. It is the physical appropriation
`
`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
`
`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