Texas A&M escapes copyright claims at 5th Circ. over 12th Man story

NCAA Football: Florida at Texas A&M
Texas A&M Aggies fans in the stands cheer after the team defeated the Florida Gators at Kyle Field, College Station, Texas, Oct 10, 2020. Mandatory Credit: Scott Wachter-USA TODAY Sports
  • Athletic department allegedly copied, published story without permission
  • A&M has sovereign immunity from sportswriter's copyright claims
  • School can still be sued under Texas Constitution

(Reuters) - Texas A&M University is immune from a sportswriter's claims that it infringed his copyrights by publishing a story he commissioned about the school's "12th Man" ethos without permission, the 5th U.S. Circuit Court of Appeals has ruled.

As an arm of the state of Texas, the state school's athletic department has sovereign immunity from Michael Bynum's claims, U.S. Circuit Judge James Graves wrote for a unanimous three-judge panel on Wednesday.

Bynum's lead attorney Elaine Goldenberg of Munger, Tolles & Olson didn't immediately respond to a request for comment, nor did A&M or the Office of the Texas Attorney General, which represents the university in the case.

In 1922, A&M athlete E. King Gill was called to suit up for the school's football team when it nearly ran out of reserve players due to injuries, becoming its "12th Man."

"Today, the 12th Man tradition is a symbol of the Aggies' unity, loyalty, and willingness to serve when called upon to do so, and is woven into many aspects of life at A&M," Bynum said in his 2017 complaint. The school also owns a trademark covering the term.

Bynum, a Birmingham, Alabama-based author, commissioned a short biography of Gill from sportswriter Whit Canning for a book about Gill and his impact on the school's football program. Bynum contacted Brad Marquardt, a media rep for A&M's athletic department, in 2010 for photographs to use in the book, and included a draft in his email.

In 2014, Marquardt allegedly had the story copied to use in fundraising efforts, removed any references to Bynum, changed the title, and altered the byline to suggest that the College Station, Texas school commissioned Canning's work.

In the three days before Marquardt took it down, the department promoted the story to "hundreds of thousands" of social media followers and subscribers to its e-newsletter, destroying the market for Bynum's book, according to his complaint.

Bynum sued Marquardt and A&M's athletic department in Houston federal court in 2017 for copyright infringement and allegedly violating parts of the U.S. and Texas constitutions.

U.S. District Judge Andrew Hanen decided in 2019 that the athletic department couldn't be sued separately from the school, and that the university had sovereign immunity from Bynum's copyright claims.

After the Supreme Court decided last year in Allen v. Cooper that North Carolina was immune from a filmmaker's copyright claims, Hanen dismissed the case against all defendants except Marquardt.

On appeal, Bynum argued among other things that the athletic department wasn't immune from the claims because it "operates with total financial independence" from the state.

But Graves, joined by Chief Circuit Judge Priscilla Owen and Circuit Judge Jerry Smith, said sovereign immunity applied because the department is run by the school and can't sue or be sued in its own name, among other things. Bynum also failed to show that the department, not the state, would have to pay for any judgment against it.

The panel also rejected Marquardt's challenges to the claims against him in a separate opinion.

The cases are Epic Sports v. Texas A&M University Athletic Department, 5th U.S. Circuit Court of Appeals, No. 20-20503; and Epic Sports v. Marquardt, 5th U.S. Circuit Court of Appeals, No. 20-20530.

For Bynum: Elaine Goldenberg of Munger, Tolles & Olson

For A&M and Marquardt: Melissa Mather of the Texas Office of the Attorney General

Read more:

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

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets, for Reuters Legal. He has previously written for Bloomberg Law and Thomson Reuters Practical Law and practiced as an attorney. Contact: 12029385713