Lawsuit claims A&M, foundation broke copyright law
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 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.
“Most Aggies I know are honorable, good-hearted people,” Bynum said. “But the people running the university largely are those with no ties to Texas A&M. To them, it’s all a business endeavor.”
The suit accuses the athletic department, the foundation and three individuals of copyright infringement and violation of the Digital Millennium Copyright Act because of the book’s distribution via the internet.
Book on Gill
Gill was a standout football, baseball and basketball athlete for A&M but is best known for being called from the stands during A&M’s game against Centre College at the 1922 Dixie Classic in Dallas to suit up and stand by to play if needed.
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 request 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 email 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 pro- cess, 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.
Story removed
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.