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HC:"Book Editor Sues Texas A&M for Copyright Violation on Original 12th Man Article"

7,709 Views | 27 Replies | Last: 6 yr ago by SquawkITag
Charlie 31
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Houston Chronicle: "Book Editor Sues Texas A&M for Copyright Violation on Original 12th Man Article"

By: David Barron

20 January 2017

An Alabama book editor filed suit Thursday against Texas A&M's athletic department and the fund-raising 12th Man Foundation, accusing both entities and three university employees of violating the Aggies' venerable honor code and, more to the point, breaking federal copyright law while trying to promote A&M's beloved, financially lucrative 12th Man trademark.

The lawsuit, filed with the U.S. District Clerk in Houston, says A&M posted without permission on two university websites a copyrighted story about E. King Gill, the original 12th Man of A&M football, in January 2014 at a time when A&M was engaged in lawsuits and public relations campaigns against NFL teams and others to protect its 12th Man trademark.

Filed on behalf of publisher/editor Michael J. Bynum of Birmingham, Ala., by Dallas attorneys Thomas Melsheimer and Natalie Arbaugh with the Dallas office of the firm Fish & Richardson, the lawsuit begins by citing the Aggie Code of Honor "An Aggie does not lie, cheat or steal or tolerate those who do" and details how A&M failed to fulfill that pledge by, in effect, stealing a story to which Bynum had devoted more than a decade of detailed research.

"They ripped off Mr. Bynum's property and used it for their own purposes," Melsheimer said. "When I was a federal prosecutor I prosecuted criminal copyright cases, and the actions in those cases were not much different than what we allege here."

Bynum, whose books include several works on Texas high school and college football, including the 2001 book "King Football," said Texas A&M's leadership has besmirched the example that Gill set with his willingness to serve Texas A&M by the manner in which they have refused to comply with his requests to repair the damage caused by the unauthorized use of his book.

Bynum decided in the late 1990s to compile a book on Gill and commissioned a story written by Fort Worth sportswriter Whit Canning. He said he sent an electronic copy of the story to A&M's sports information department in June 2010 with a re-quest for photos to accompany the book, and was told a staff member printed a copy for his files.

In January 2014, with the Seattle Seahawks' "12" campaign in full flower, the staff member said in an e-mail to Bynum that he was asked if he had any material on Gill and produced a copy of the Canning story.

The 4,600-word story was retyped in the process, Gill's first name, Earl, was erroneously changed to Edward and published with Canning's byline and the credit line "Special to Texas A&M Athletics." Readers also copied it for publication on at least two A&M fan websites.

"The story was an important part of our strategic plan to show Texas A&M is the true owner of the '12th Man,'" the staff member wrote to Bynum to explain why the story was used on the university websites.

Bynum, who published his first book about A&M in the 1980s and in the 1990s published a book about Aggies football in association with the Houston Chronicle, complained of the improper use, and the story was removed. However, he said A&M's refusal to compensate him for potential lost revenue demonstrates the degree to which A&M has abandoned its core principles of honor and respect in pursuit of money and power.

A&M was granted the "12th Man" trademark in 1990 and has filed scores of legal actions to prevent unauthorized use.

Foundation officials and athletic department officials could not be reached immediately for comment Thursday afternoon. Alan Cannon, A&M's associate athletic director for media relations, had no immediate comment. Lane Stephenson, director of news and information services at A&M, said the university would have no comment on the matter. Brad Marquardt, an associate sports information director, could not be reached for comment.

While the Bynum-A&M dispute has been quietly stewing behind the scenes for the better part of three years, it is the second similar dispute involving intellectual property and an area university to become public in recent months.

Houston photographer Jim Olive has a longstanding dispute with the University of Houston over what Olive says was UH's unau-thorized, frequent use of a photo of the Houston skyline in its web and print publications promoting the school, going to far as to remove Olive's credit line from the photo.

Olive billed the university for $41,000, including $25,000 for removing his name from the photo credit, but UH refused to pay and said it would invoke sovereign immunity if Olive filed suit. The university offered to pay $2,500, but Olive rejected the settlement.

The dispute came at a time when UH was aggressively seeking legal remedies over the South Texas College of Law's attempt to rename itself Houston College of Law. UH prevailed in that case, and the school is now known as South Texas College of Law Houston.
aggieaviator
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A&M owns the trademark and has defended it. I don't see any legal grounds where A&M should be worried in the slightest.
Lateralus Ag
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aggieaviator said:

A&M owns the trademark and has defended it. I don't see any legal grounds where A&M should be worried in the slightest.


They aren't suing over the trademark. They are suing over the TMF and TAMU plagiarizing a copyrighted article. (Allegedly).
PooDoo
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He's about to get paid. Stupid decision to use his book
aggieland09
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I was bored the other night and read the entire suit. Sounds legit. Sounds like blatant wrong doing in an attempt to gain more evidence against Seattle during their 2014 Superbowl. Not that we needed any more. Sounds like the plagiarizer wanted a feather in his cap. He even emailed a fake apology and tried to pay his way out of it.
unmade bed
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Yeah, i think we may be in the wrong on this one. A&M employs some real dumbasses unfortunately, in alot of areas
FishingAggie
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unmade bed said:

Yeah, i think we may be in the wrong on this one. A&M employs some real dumbasses unfortunately, in alot of areas


In A LOT of areas.

biobioprof
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aggieland09 said:

I was bored the other night and read the entire suit. Sounds legit. Sounds like blatant wrong doing in an attempt to gain more evidence against Seattle during their 2014 Superbowl. Not that we needed any more. Sounds like the plagiarizer wanted a feather in his cap. He even emailed a fake apology and tried to pay his way out of it.
Yup. IANAL, but I think the problem with his suit is going to be whether he actually incurred any damage after A&M acted on his cease and desist demand. It's not like we were selling the stories, right? Did he lose sales Or other opportunities because the material was buried on our crappy web site?
ClassOf17
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How long until Randy claims credit
fla_agfan
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Damn it..... sumlin, can't you do anything right
2thFixinAg
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aggieaviator said:

A&M owns the trademark and has defended it. I don't see any legal grounds where A&M should be worried in the slightest.
Reading comprehension isn't your strong suit.


going to settle i'm sure. Hopefully the price of chicken wraps doesn't go up to pay for it.
86 Tex Ag
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FEEL FREE TO SKIP IF TLDR ... ha!


This is an interesting case. Surprisingly, I think the DMCA claim (stripping the copyright information) is stronger for the plaintiff than the copyright infringement claim.

It appears as though the infringing activities took place years before the registration for the work was obtained. As such, the plaintiff is going to have a difficult time with their damages claim on the copyright infringement claim. It is extremely important in a copyright case to have the registration in place before the infringement -- otherwise, certain remedies for infringement are lost.

They allege that the infringement took place around January 11, 2014. I pulled up U.S. Copyright Registration No. TXu002020474. Although the work was created in 2010, the registration was not obtained until January 12, 2017. Statutory damages are not available for infringing conduct that began before registration. Similarly, attorneys fees are not available for infringing conduct that began before registration.

The plaintiff will be stuck trying to prove either the actual damages suffered by him as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing actual damages.

The complaint states that the infringing article was taken down inside of two weeks, on January 22, 2014.

It is going to be tough for the plaintiffs on the plain vanilla copyright infringement case (for damages).

It's a whole different story on the Digital Millennium Copyright Act. It is very clear that the information that was stripped was on the publication when it was given to Texas A&M.

Part of the DMCA makes it illegal for someone to remove "copyright management information" from a work to disguise the infringement when used. This information need only be the author's name, identifying information, or copyright notice to qualify. From reading the complaint, it seems clear that this act was violated by Brad Marquardt.

A&M is screwed on this part of the case.

The statutory damages available for a DMCA violation are small. I think its $25,000 max. The plaintiff could alternatively go after its actual damages (or defendant's profits, no double counting), but that's a tough road to pursue. Unfortunately, what's bad for Texas A&M is that the violation of the DMCA independently provides for the award of attorneys fees. It's at the discretion of the court.

It may take a while, but the case will likely settle.
jja79
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Did not read. Are our donations going up to cover a lawsuit?
86 Tex Ag
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No. We should be good. Donation amounts will not have to increase to cover this claim.

You have to also expect an 11th A sovereign immunity defense by the school.
jja79
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Donations aren't paid to the school.
champagnepapi
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Lol so....the TMF will be using Donor money to settle the case?
aggieaviator
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Lateralus Ag said:

aggieaviator said:

A&M owns the trademark and has defended it. I don't see any legal grounds where A&M should be worried in the slightest.


They aren't suing over the trademark. They are suing over the TMF and TAMU plagiarizing a copyrighted article. (Allegedly).
I didnt read it. I had to skim past all the Aggie Code of Honor rhetoric and missed the details.
Grantland3
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"Texas A&M's new president, Michael Young, sits on The Commission on the Theft of American Intellectual Property -- the most important IP board in the USA. His university's attempt to use sovereign immunity to not pay for the intellectual property they stole sets a horrible example and proves that Dr. Young and Texas A&M are not committed to protecting intellectual property. Dr. Young is a fraud and should resign from this IP Commission."
aggiebrad94
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Grantland3 said:

"Texas A&M's new president, Michael Young, sits on The Commission on the Theft of American Intellectual Property -- the most important IP board in the USA. His university's attempt to use sovereign immunity to not pay for the intellectual property they stole sets a horrible example and proves that Dr. Young and Texas A&M are not committed to protecting intellectual property. Dr. Young is a fraud and should resign from this IP Commission."
The President should not be expected to know how the 12th Man Foundation used someone else's story. His seat on this board should give him an excellent opportunity to correct any wrong doing in a fair and equitable manner.
DayAg!
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S
Randolph gonna be all over this doh.
BQ78
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And this is why Texags doesn't want you to copy and paste whole articles.

Like the OP did!
AGC
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aggiebrad94 said:

Grantland3 said:

"Texas A&M's new president, Michael Young, sits on The Commission on the Theft of American Intellectual Property -- the most important IP board in the USA. His university's attempt to use sovereign immunity to not pay for the intellectual property they stole sets a horrible example and proves that Dr. Young and Texas A&M are not committed to protecting intellectual property. Dr. Young is a fraud and should resign from this IP Commission."
The President should not be expected to know how the 12th Man Foundation used someone else's story. His seat on this board should give him an excellent opportunity to correct any wrong doing in a fair and equitable manner.


Compleey disagree. We need a new president. This is clearly Young's fault and he needs to be gone.
Tom Hagen
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First thing we do, we kill all of the lawyers.
howdy2u
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AGC said:


Compleey disagree. We need a new president. This is clearly Young's fault and he needs to be gone.


Agreed. And Sumlin. And Childress. Wait, do we like Childress today? So hard to keep up, just fire anyone in charge of anything, just to be sure.
Meximan
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Tom Hagen said:

First thing we do, we kill all of the lawyers.

Ironic statement.

leftcoastaggie
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Grantland3 said:

"Texas A&M's new president, Michael Young, sits on The Commission on the Theft of American Intellectual Property -- the most important IP board in the USA. His university's attempt to use sovereign immunity to not pay for the intellectual property they stole sets a horrible example and proves that Dr. Young and Texas A&M are not committed to protecting intellectual property. Dr. Young is a fraud and should resign from this IP Commission."
Yeah because this happened in Jan of 2014, a whole 17 months before Young became president.
Yell Practice
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TMartin
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When lawyers aren't suing somebody they look for ways to sue somebody. The reason isn't important.
SquawkITag
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Nevermind
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