“It was not until defendant Marquardt served an amended answer and provided responses to interrogatories that Bynum had learned the true identities of culpable Texas A&M employees and their scope of involvement in the alleged scheme to unlawfully reproduce the Gill biography text.”
On November 23, sportswriter Michael Bynum and his publishing label Epic Sports filed a motion for leave to file a second amended complaint and a proposed second amended complaint in the Southern District of Texas. The filings seek to revive copyright infringement claims filed by Bynum against employees at Texas A&M University for their roles in unauthorized distributions of Bynum’s biography of E. King Gill, a former Texas A&M student who inspired the 12th Man tradition at Texas A&M, by adding several new defendants who were actually responsible for the unauthorized copying at issue in the case.
Bynum SCOTUS Petition Denied this October
Bynum first filed suit in 2017 against Texas A&M and school officials, including Brad Marquardt, currently the Associate Director of Media Relations for Texas A&M’s Athletics Department. In September 2021, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s dismissal of Bynum’s claims under the U.S. Supreme Court’s 2020 decision in Allen v. Cooper, which found that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereignty for the purposes of holding state entities liable for copyright infringement.
This summer, Bynum and Epic Sports filed a petition for writ of certiorari with the U.S. Supreme Court asking to hold Texas A&M and Marquardt liable for infringement as a taking under the Fifth and Fourteenth Amendments. Such a claim should be available under the Court’s 2006 decision in United States v. Georgia, which supported abrogation of state sovereignty on a case-by-case basis where the plaintiff established that state action violated constitutional rights. On October 3, the Supreme Court denied Bynum’s and Epic Sport’s petition for writ in the Court’s first order list of the 2022 term.
Bynum’s Proposed Amended Complaint Lists Four New Individual Defendants
As Bynum’s motion for leave points out, it was not until defendant Marquardt served an amended answer and provided responses to interrogatories that Bynum had learned the true identities of culpable Texas A&M employees and their scope of involvement in the alleged scheme to unlawfully reproduce the Gill biography text. Originally, Bynum had filed suit against directors at Texas A&M who were not involved in the actual recopying of the Gill text, nor were they decision-makers behind the infringement scheme involving the transcription of the Gill text without any author or copyright management information for publication on Texas A&M’s website and distribution through online channels such as Twitter.
The proposed second amended complaint filed by Bynum lists four defendants other than Brad Marquardt who are being sued in their individual capacity:
- Jason Cook, now at Baylor University but a Senior Associate Athletic Director at Texas A&M at the time of the 2014 infringement;
- Matt Callaway, currently the Assistant Director of Development for the Texas A&M Foundation and an information rep for the Athletics Department at the time of the 2014 infringement;
- Matt Simon, currently the Digital Strategy Manager for 12th Man Productions with the Texas A&M Athletics Department and website manager for the Athletics Department at the time of the 2014 infringement; and
- Krista Smith, who is the Communications Coordinator with Texas A&M’s Communications and Marketing Division and served in the same role at the time of the 2014 infringement.
Bynum’s amended complaint reiterates many of his previous allegations involving communications with Marquardt between 2010 and 2013 regarding Bynum’s work on a biography of E. King Gill, including a thorough review of Gill’s life well after the famed 1922 Dixie Classic during which Gill, then a Texas A&M student, left the stands to don a football jersey and stand in for injured teammates so Texas A&M could finish the game. Bynum’s last email in December 2013 came just before Texas A&M engaged in a campaign to distinguish itself as the true owner of the 12th Man tradition in the face of claims by the NFL’s Seattle Seahawks, who were claiming that tradition as the team was entering the season’s playoffs.
In January 2014, Marquardt allegedly directed his secretary to reproduce Gill’s PDF text into Microsoft Word without the author details and copyright information, and that copy was allegedly sent to Matt Callaway, who had asked Marquardt for information on the 12th Man legend. Callaway and fellow defendant Matt Simon were tasked by Jason Cook with developing the Athletics Department’s contribution to Texas A&M’s social media campaign on the 12th Man tradition. After Callaway sent his own edited version of the Gill biography to Simon, the article was posted to the Athletic Department’s website after Simon allegedly changed the byline to “Special to Texas A&M Athletics.” As Bynum’s complaint notes, “special to” is a term used in the journalism industry to indicate that the article was written exclusively for Texas A&M and identify it as the copyright owner.
Communications About Infringement Show Knowledge of Unlawful Publication
Later in January 2014, another version of the Gill biography was posted to Texas A&M’s online magazine, TAMU Times. As Bynum’s amended complaint notes, the attribution for the article on the TAMU Times listserv included the name Whit Canning, the name of the sportswriter who Bynum had hired to produce the Gill biography as a work-for-hire based on research that Bynum had compiled. The inclusion of Canning’s name after it had already been removed from the Gill biography that was posted on the Texas A&M Athletics Department’s website further supported that the defendants conspired to extract information from the copyrighted materials previously provided by Bynum to Marquardt. Marquardt’s answers to interrogatories served in August 2021 further confirmed that cover sheet information from Bynum’s Gill biography, including the author, was communicated to Callaway and Simon.
Along with the website and TAMU Times posts, Bynum alleges that the newly named defendants were also involved in Texas A&M’s activities in promoting the Gill biography via Twitter and a news release omitting Canning’s name that was also distributed by the university in January 2014. Email exhibits attached to Bynum’s proposed amended complaint show Marquardt notifying defendants Callaway and Cook about communications alerting the Texas A&M Athletics Department to the infringement of the Gill biography.
“Defendants Callaway and Cook thus clearly knew at the time that their publications were unlawful. Moreover, given the context of this communication, entirely devoid of any confusion or statement of innocence from any Defendant, it is apparent that all Defendants knew exactly what they had done. Yet Defendants did nothing to correct the violations, further exacerbating the violations.”