The Constitution, Law, Rationalizations And Ethics—One Of These Things Is Not Like The Other, I: The University Of Houston Steals A Photo

Two recent cases illustrate how law and even Constitutional law can be perverted toward indefensible ends if compliance is the only objective, and ethics are left out of the equation. The first case comes to us from Texas, University. of Houston System .v.Jim Olive Photography.

Houston photographer Jim Olive  discovered during an online check of his copyrighted works that the  University of Houston had appropriated one of his photographs and was using it extensively in its  web and print promotional materials. It was an overhead, aerial image of the City of Houston at dusk in 2005 that Olive went to great expense and effort  to produce.  He rented a helicopter, hired a pilot, and utilizing special photography equipment, suspended himself from the helicopter with a harness.

The university admired it, and found the shot ideal for its purposes, so it  downloaded the photo from Olive’s stock library, removed the copyright markings, and did not credit him when they used it. Olive sent the school a take-down letter and a bill, and the university refused to pay. Then he sued, but the university responded  that it has sovereign immunity, and can’t be sued, because he isn’t a citizen of Texas. The Eleventh Amendment reads in part,

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The photographer had no right to sue under the U.S. Constitution unless the school waived its sovereign immunity or the act of using the photograph constituted a “taking” of property, the University’s lawyers  argued. When the trial court sided with Olive, the University appealed.

The Court of Appeals has ruled against Olive, declaring  that the school’s actions wasn’t a “taking.” Not only can’t Oliver sue to be paid for the use of his photograph,  he will have to pay the university’s legal costs.

“It just doesn’t seem fair to me,” says Olive.  I’d say his instinct is accurate, but this is the law: fairness is beside the point. To make the ruling even more disturbing from an ethics perspective, the University has a page on its site directing readers to  report copyright infringements – and also to request permission to use UH intellectual property, like the photograph it stole from Jim Olive,

Nice.

Does the ruling mean that any state institution can use images and other intellectual property belonging to out-of -state individuals—artists, writers and photographers— without having to pay the originators? It would seem so.

But the fact that a state and its related institutions can steal property doesn’t mean it has to. What the University of Houston has done is unconscionable. The school knows what it did can’t be defended ethically, but because it also knows it can literally get away with theft since there is no way to force it to pay, it is taking advantage of an unforeseen consequence of the Bill of Rights.

The University is employing two ugly and closely related rationalizations from the Ethics Alarms list. The first…

#4. Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical.

The late D.C. Mayor and lovable rogue Marion Barry earned himself a place in the Ethics Distortion Hall of Fame with his defense of his giving his blatantly unqualified girlfriend a high-paying job with the DC government. Barry declared that since there was no law against using the public payroll as his own private gift service, there was nothing unethical about it. Once the law was passed (because of him), he then agreed that what he did would be wrong the next time he did it.

Ethics is far broader than law, which is a system of behavior enforced by the state with penalties for violations. Ethics is good conduct as determined by the values and customs of society….Much that is unethical is not illegal, but that is just the factual error in  this rationalization.

The greater problem with it is that it omits the concept of ethics at all.  Ethical conduct is self-motivated, based on the individual’s values and the internalized desire to do the right thing….

and the second..

5. The Compliance Dodge.

Compliance with rules, including laws, isn’t the same as ethics. Compliance depends on an individual’s desire to avoid punishment. Ethical conduct arises from an individual’s genuine desire to do the right thing. The most unethical person in the world will comply if the punishment is stiff enough. But if he can do something unethical without breaking the rules, watch out!

No set of rules will apply in all situations, and one who is determined to look for loopholes in a set of laws, or rules, or in an ethics code, so that he or she can do something self-serving, dishonest, or dastardly, is likely to find a way. This is one reason why the ubiquitous corporate ethics programs that emphasize “compliance” are largely ineffective. By emphasizing compliance over ethics, such programs encourage the quest for loopholes….

When an organization or society makes compliance…doing the right thing to avoid unpleasant consequences… the focus of its attempt to promote ethical conduct, it undermines the effort by promoting confusion in the not-infrequent circumstances when doing the right thing hurts. The better approach, and the one promoted by Ethics Alarms, is to teach and encourage good behavior and ethical virtues for their own sake. When the inevitable loophole opens up in the rules, when the opportunity to gain at someone else’s expense is there and nobody will ever know, it is the ethical, not the compliant, who will do the right thing.

This is a school. Shouldn’t a school operate by the same ethical principles it is charged with teaching its students? The University of Houston should have acknowledged the merits of Olive’s complaint, and paid him for his work. That’s not a hard decision, or shouldn’t be. Instead, it chose to do what it could get away with, rather than what was right.

The ruling by the Court of Appeals for The First District of Texas  can be read on here, and the applications from the start of the case can be seen on the Copyright Alliance website.

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Pointer and Source:  DP Review

15 thoughts on “The Constitution, Law, Rationalizations And Ethics—One Of These Things Is Not Like The Other, I: The University Of Houston Steals A Photo

  1. Not a lawyer but how does this make any sense?

    What about music copyright? If someone steals my song, I can’t sue them if they live in a different state? I can steal anybodies art as long as we live in a different state? How is that correct? And I’m pretty sure that’s not the case.

      • Probably true. There’s just so much wrong with this whole thing.

        I had a photo I took used without my permission and no credits by a local newspaper and they were trying to sell it. I put a really quick stop to that.

  2. It’s really too bad that sovereign immunity is one way… You can’t sue them, but they can sue you for infringing. Frankly, since laws attempting to exempt copyright law from sovereign immunity have apparently already been found unconstitutional, they should make state actors exempt from federal copyright and patent protection. At least that would be an even playing field.

    Is there any possibility of appealing on the basis that by asserting copyrights, they have waived their sovereign immunity for copyright purposes? From what I saw at https://www.ipwatchdog.com/2018/02/01/ip-infringement-sovereign-immunity/id=93050/ it was found to be waived in at least one case because they tried to assert a patent against the person challenging their patent.

  3. Does that mean that I, a resident of Washington, can obtain and publicize the curricula, contents, research, or anything else produced by UH?

  4. What is even more shameful and galling is the University of Houston Law Center sued my law school, South Texas College of Law, when my school changed its name to the Houston Law Center and rebranded itself with similar colors. Granted it was a dumb move by my law school. U of H sued for, get this, copyright, trademark, and trade dress infringement. U of H forced my school to capitulate and change it’s name and branding.

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