10 September 2021CopyrightAlex Baldwin

Texas university dodges writer's copyright appeal

Texas A&M University’s (TAMU) athletic department has escaped claims that it infringed a writer’s copyright by republishing a commissioned story without permission.

The  judgment handed down by the Fifth Circuit of the US Court of Appeals on Wednesday, September 8, affirmed a prior district court’s decision that the state school’s athletics department had sovereign immunity in this case

The three-judge panel held that the athletic department could not be sued separately from the state-owned school, and therefore had sovereign immunity from the copyright claims.

The action was bought by sports publishing company Epic Sports’ editor Michael Bynum, who approached the university about writing a book on its “12th Man” tradition, which was inspired by E King Gill, a former squad player for the TAMU football team.

Bynum hired writer Whit Canning to write a short biography about Gill, which he planned to use as the opening chapter of the book.

Bynum then emailed the school seeking photographs for the story, including a draft of the book in PDF form, along with a statement that “no part of the book may be reproduced or used… without the permission of the publisher.”

In January 2014, TAMU’s athletics department directed staff to find background information on Gill that could be used to promote a fundraiser related to the 12th Man story, in which it retyped the Gill biography that Bynum had sent in 2010, removing any references to Bynum or Epic Sports, including rewriting the byline to include “Texas A&M Athletics”.

Soon after, the interview was published under the title “The original 12th Man”. On January 22, Bynum emailed the University’s media relations officer requesting the immediate removal of the article, and was taken down promptly, but not before it was shared and reposted on various online forums.

In 2017, Bynum and Epic Sports filed a suit against the TAMU, asserting direct copyright infringement, contributory infringement, vicarious infringements and violation of the Digital Millenium Copyright Act (DMCA).

TAMU moved to dismiss the claims for lack of jurisdiction on state sovereign immunity grounds. The district court agreed and dismissed the claims in March 2019, but later stayed the case pending a decision in Allen v Cooper.

In Allen v Cooper the Supreme Court ruled that the state of North Carolina wasn’t immune from the claims of infringement as it “acted with total financial freedom” from the state.

This led to a backlash from copyright lobbyists, who urged lawmakers to reconsider the sovereign immunity statute.

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