By Joseph M. Hanna, of Goldberg Segalla
On March 15, 2019, Texas A&M University urged U.S. District Court Judge Andrew S. Hanen that the Texas A&M Athletic Department is not a separate entity and therefore is entitled to immunity in the Texas A&M “12th Man” copyright suit.
As we have continued to report, in 2014, Michael J. Bynum, an author, sued Texas A&M after it posted on its website the “heart” of Mr. Bynum unpublished book, 12th Man: The Life and Legend of Texas A&M’s E. King Gill. According to the complaint, Texas A&M, “nearly word-for-word,” copied a substantial amount of Bynum’s work without permission and violated Bynum’s copyright in his unpublished work.
The “12th man” is a common slogan used by Texas A&M to refer to former football legend E. King Gill. Notably, Texas A&M owns the trademark “12th man” and it has vigorously enforced its rights, including filing over 550 lawsuits, some against high profile defendants like the NFL’s Seattle Seahawks and Indianapolis Colts.
So far, the core of the case revolves around whether the doctrine of sovereign immunity applies. According to the doctrine, a state cannot be sued without first giving its consent to be sued. According to Bynum, states are not immune to suits that are based on infringement of the rights enjoyed by copyright owners. According to Texas A&M, it is protected under the doctrine of sovereign immunity and has released numerous documents to support its claim.
In the most recent development, Bynum has narrowed his lawsuit, specifically against Texas A&M’s Athletic Department. However, in a letter to Judge Hanen, it was alleged that Bynum is “not entitled to pick off one department of a State agency, and claim to proceed against only that department.” According to the letter, the Texas A&M Athletic Department is a part of Texas A&M University, has no separate corporate existence from Texas A&M University, and is not a proper party to this suit. “The distinction is important because ensuring that the defendants in this suit are named properly is a necessary condition for a proper analysis of immunity.” Again, Texas A&M urged the court that all claims against the University, and the Athletic Department, warrant dismissal based on the doctrine of sovereign immunity.
