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5th Circuit set to referee 'egregious' 12th Man copyright case

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Texas A&M Aggies running back Devon Achane. Sam Navarro-USA TODAY Sports

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(Reuters) - Despite a U.S. Supreme Court ruling last year that protects states against copyright-infringement lawsuits, sports historian Michael Bynum will ask a federal appeals court on Tuesday to revive his suit against Texas A&M University for literally retyping, posting and promoting the first chapter of his unpublished book about an Aggie icon without attribution or permission.

Bynum’s lawyers at Munger, Tolles & Olson will argue to the 5th U.S. Circuit Court of Appeals that the Supreme Court’s 2020 ruling in Allen v. Cooper only protects states against statutory claims – not cases like his, where the plaintiffs “have alleged egregious copyright infringement that amounts to a violation of the Fourteenth Amendment.”

“There is no question that the complaint here alleges a copyright claim based on conduct that violates due process,” lead counsel Elaine Goldenberg wrote in the reply brief for Bynum and his Alabama-based publishing company, Canada Hockey d/b/a Epic Sports. “This Court need not go any further in order to reverse.”

Goldenberg did not respond to a request for comment on Friday. Texas Assistant Attorney General H. Melissa Mather, who represents the university and its employees, declined to comment.

In a complaint filed in 2017 in federal court in Houston, Bynum alleged that the manuscript was a work-for-hire he had commissioned for a book of stories he was compiling about E. King Gill.

At a football game Gill attended in 1922, the team suffered so many injuries that the coach asked him to suit up and stand by as a reserve player. Gill became known as the “12th Man,” which became shorthand for a fan’s duty to support the team. Texas A&M registered it as a trademark in 1990 and has licensed to various NFL teams.

Bynum sent the chapter to the Texas A&M Athletic Department’s media-relations team in 2010 to inquire about obtaining photographs to accompany it. The chapter listed Bynum as the book editor and copyright owner, and listed the commissioned writer as Whit Canning, a well-known Texas sportswriter.

In 2014, media rep Brad Marquardt found the yellowed pages of Bynum’s 2010 manuscript, had his secretary “key them in,” and posted it online as a special report that Canning had prepared for Texas A&M. At the time, the university was in “ongoing trademark disputes over the 12TH MAN trademark, as well as a $450-million capital campaign” to refurbish the football stadium, known as “Home of the 12th Man,” Bynum said.

During the three days the story remained online, the department promoted it to “hundreds of thousands” of social media followers and subscribers to its “TAMU Times” e-newsletter – destroying the market for his book among its “core audience,” Bynum alleged.

The Copyright Alliance, the Association of American Publishers, and Antonin Scalia Law School Professor Adam Mossoff have filed amicus briefs on behalf of Bynum and his company, arguing that a separate Supreme Court decision from 2006, U.S. v. Georgia, supports their right to bring a due process or takings claim for intentional, blatant or egregious copyright infringement

The Texas attorney general’s office, however, says Bynum’s claims on appeal are overblown.

“(T)his case presents none of the allegedly weighty Constitutional issues briefed by Plaintiffs,” Assistant Attorney General H. Melissa Mather wrote in a brief for the Texas A&M Athletic Department and two employees who allegedly approved the online post in 2014.

“The simple truth,” Mather said, is that Bynum sued the wrong party. In an ostensible end-run around the sovereign-immunity issue, he named the self-funded athletic department rather than the tax-funded university.

The gambit failed two years later, when U.S. District Judge Andrew Hanen decided that the department was not an entity that could be sued. Hanen also said the university could not be substituted in as the proper party because it was immune from suit for copyright damages.

Hanen stayed his rulings until the Supreme Court decided the Allen case, then dismissed the suit against all defendants except Marquardt.

Hanen rejected Marquardt’s qualified-immunity defense, saying “an objectively reasonable individual” should have known that “taking a work authored by another, having one’s secretary type it up — omitting all indication of who owned or had edited the work — and distributing the work via an e-Newsletter, was bound to violate U.S. copyright laws.”

Marquardt argued that he was entitled to judgment anyway because Bynum could not produce a “reasonably contemporaneous” written contract, which the Copyright Act requires for a valid work-for-hire agreement. Instead, Bynum swore in an affidavit that he and Canning had signed such a contract in 1997 but could not find it now.

Hanen found that whether the manuscript was a work-for-hire is a question for the jury, but not was not relevant to Marquardt’s qualified-immunity claim.

The 5th Circuit will also hear Marquardt’s appeal from that ruling on Tuesday.

The case is Canada Hockey LLC dba Epic Sports and Michael Bynum v. Texas A&M Athletic Dept. et al, 5th U.S. Circuit Court of Appeals, No. 20-20503.

For Canada Hockey and Bynum: Elaine Goldenberg and Max Rosen of Munger, Tolles & Olson.

For Texas A&M Athletic Dept: H. Melissa Mather and Lea Brigtsen, Texas Attorney General’s Office

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