Jim Olive Photography, dba Photolive, Inc. v. University of Houston System

In the decision below, the Supreme Court of Texas rejected the argument that copyright infringement by a government entity appropriates “the right to exclude everyone from use of [his] copyrighted materials,” and therefore constitutes a per se taking under the Fifth and Fourteenth Amendments. App. 16. The court instead held that the government appropriation of a copyright owner’s right to exclude was insufficient to warrant per se treatment and dismissed Petitioner’s case for failing to adequately plead a violation of the Takings Clause. App. 22. Five days later, this Court issued its decision in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (June 23, 2021), which held that a government commits a per se violation of the Takings Clause when it appropriates an owner’s “right to exclude” others from utilizing his property and appropriates for itself “a right to invade” that property. Id. at 2072. The question presented is whether the petition should be granted, the decision below vacated, and the case remanded for further proceedings in light of Cedar Point Nursery?