PHILADELPHIA (CN) – The Third Circuit heard arguments Monday from the bank executive whose book was found to infringe the copyright for Commerce Bank marketing materials.
Having merged with Commerce in 2007, TD Bank claims that the assets it acquired as part of the deal included an unpublished manuscript with nearly the same name as the book published in 2012 byVernon Hill II,Commerce’s founder and executive, “Fans! Not Customers: How to Create Growth Companies in a No Growth World.”
U.S. District Judge Robert Kugler ruled for TD at summary judgment in 2015, saying that the bank must be considered the sole author of the manuscript since it makes no mention of Hill.
Pushing for a reversal, Gibson Dunn attorney Howard Hogan told the Third Circuit at oral arguments Monday that the book tells a the story of Hill’s life not just banking.
U.S. Circuit Judge Cheryl Ann Krause seemed skeptical of the argument.
“The infringement does not go to his life story,” Krause said. “It goes to those verbatim texts.”
Hogan also tried to argue that TD cannot show irreparable harm since it does not use the book for itself or commercial use.
“There is no harm period,” said Hogan. “They’re not in the book business, they’re a bank.”
Brown and Connery attorney William Tambussi argued Monday for the bank, saying Hill has no ownership rights because he wrote the manuscript under a work-for-hire.
“We are not excluding him from telling his story, he has told his story,” Tambussi said.
“We have the right to control the assets we own,” the lawyer added.
Tambussi also pushed back when U.S. Circuit Judge Robert Cowen voiced skepticism whether a bank chairman’s job duties include writing a manuscript.
“His duties were to market the bank,” said Tambussi. “He worked on the book during working hours under funds from Commerce Bank.”
Hogan returned on rebuttal to argue that TD has had a vendetta against Hill and is using this book as leverage.
It is unclear when the panel, rounded out by U.S. Circuit Judge Julio Fuentes, will reach a decision on the case.
Hill rewrote the book in 2016. It is available for electronic download in the U.S.