Texas Supreme Court Cites Prof. Cotter's Article on Takings and Intellectual Property

In an opinion handed down on June 18, 2021, Jim Olive Photography v. University of Houston System, the Texas Supreme Court held that a governmental unit's "violation of a copyright, without more, is not a taking" of private property for which just compensation is due under the Texas or U.S. Constitutions. The court cited Professor Tom Cotter's article, Do Federal Uses of Intellectual Property Implicate the FIfth Amendment?, 50 Florida Law Review 529 (1998), for the propositions that "copyright is 'nonrivalrous,' meaning that 'another person can use it without simultaneously depriving anyone else of its use,'" and that for this reason "the government’s use of the work 'does not prevent the [copyright] owner . . . from licensing others to use it.'"