Texas A&M Immune From Copyright Lawsuit Over Unauthorized Publication Of Article About The "12th Man"

• Published date: 23 February 2022
• Subject Matter: Intellectual Property, Government, Public Sector, Litigation, Mediation & Arbitration, Copyright, Constitutional & Administrative Law, Sovereign Immunity: Public Sector Government
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Brian Murphy

2022 marks the 100th anniversary of the birth of Texas A&M University's "12th man" tradition. For those who are not familiar with the lore surrounding the 12th man (I certainly wasn't), the school's website provides this description:

"On Jan. 2, 1922, E. King Gill, a basketball player and former member of the Texas A&M football team, was in the stands during the Dixie Classic as the Aggies faced top-ranked, undefeated Centre College. Outgunned and with nearly all players injured, Coach Dana X. Bible called Gill down to the sideline. Gill suited up and stood ready to play throughout the game, forever becoming "the 12th Man" in what was one of the greatest upsets in college football history, with the Aggies winning 22-14. This willingness to serve is tradition at Texas A&M and in 2022, we'll celebrate the centennial of the 12th Man!"

Plaintiff Michael J. Bynum is an author and editor of sports history and memorabilia books, including Aggie Pride, a book he published in 1980 about Texas A&M's football program. In the 1990s Bynum returned to the topic and decided to pen a book specifically about Gill and his impact on football at Texas A&M. For a number of years, Bynum researched Gill and the 12th Man story, including conducting interviews with personnel in Texas A&M's Athletic Department. At one point, Bynum hired another writer (Whit Canning), on a work-for-hire basis, to write a short biography about Gill, titled "An A&M Legend Comes to Life," which Bynum planned to use as the opening chapter of his book.

In 2010, Bynum sent a draft of his book to the Associate Director of Media Relations in Texas A&M's Athletic Department. The draft included a copyright notice and a statement that "no part of the book may be reproduced or used in any form or by any means ... without the permission of the publisher." Four years later, that employee directed his assistant to retype the chapter, remove references to Bynum, include the byline "by Whit Canning, special to Texas A&M Athletics," and change the original title from "An A&M Legend Comes to Life" to "The Original 12th Man." Shortly thereafter, the modified article was published on the Athletic Department website and promoted via Twitter. After Bynum called foul, the Athletic Department removed the article from its website about four days after it first appeared, and the Associate Director of Media Relations provided this explanation for the "mix up" in an email he sent to Bynum:

"It was an incredibly coincidental...