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Texas A&M Sued for Copyright Over Iconic 12th Man

Texas A&M University’s 12th Man trademark is synonymous with its powerhouse football program, but in its eagerness to show it owns the mark, it published a plagiarized article about the alumnus known as the original 12th man, according to a federal lawsuit.

HOUSTON (CN) – Texas A&M University’s 12th Man trademark is synonymous with its powerhouse football program, but in its eagerness to show it owns the mark, it published a plagiarized article about the alumnus known as the original 12th man, according to a federal lawsuit.

Alabama resident and author Michael J. Bynum sued the Texas A&M University Athletic Department, the Texas A&M University 12th Man Foundation and three school employees on Thursday in the Southern District of Texas, claiming the athletic department posted the “heart” of his unpublished book “12th Man: The Life and Legend of Texas A&M's E. King Gill” on its website “nearly word-for-word” in January 2014 without his permission.

The school’s 12th Man tradition took root in 1922 during the Dixie Classic football game in Dallas, when the Aggies’ football coach called A&M student Earl Gill King down from the stands to suit up for its injury-plagued team.

King didn’t even play in the game – which the Aggies won 22-14 – but he reportedly said afterwards, "I wish I could say that I went in and ran for the winning touchdown, but I did not. I simply stood by in case my team needed me."

Since then, the school’s students stand throughout its football games in symbolic reverence to King and are collectively known as the “12th Man.”

Almost a century later, the tradition has become heavily commercialized, with the school using Gill’s story for an alumnus-donor campaign that has raked in millions of dollars.

The school trademarked The 12th Man in 1990 and boasts on its website that it has “fought over 550 infringement issues,” according to the lawsuit.

Bynum, who has written over 100 sports history books, says he first became interested in Gill’s story in the late 1970s while researching for his first book about Texas A&M’s football program, “Aggie Pride: A Story of Class and Courage,” which he published in 1980.

He says he came to realize the school’s history of Gill was one-dimensional because it “reduced Gill’s lifetime of commitment to A&M and service to his community to his actions at a single football game.”

So in 1997, Bynum says, he hired Whit Channing, a sportswriter for the Fort Worth Star-Telegram to research and write a biography about Gill for the opening chapter in his book, “12th Man: The Life and Legend of Texas A&M's E. King Gill.”

Over the next decade, Bynum says, he put in more than 1,500 hours researching and writing the book. He made several trips from Alabama to Texas, visiting Gill’s high school in Dallas and Texas A&M University where he met with Brad Marquardt and Alan Cannon, media-relations employees in the school’s athletic department.

Cannon and Marquardt are now defendants in the lawsuit.

Bynum says he emailed Marquardt a draft in 2010 and asked for help finding photos for the book and fact-checking it.

In 2012, Texas A&M University joined the Southeastern Conference, whose teams are perennial favorites to win the NCAA football championship, raising its national profile and TV exposure. Bynum says that development and others pushed him to publish the book, which he hoped to release in the fall of 2014 to coincide with the 75th anniversary of A&M’s 1939 championship season.

Bynum gave exclusive publishing rights to his company Canada Hockey LLC dba Epic Sports.

“While finalizing his draft of the 12th Man book, Bynum emailed Marquardt as late as December 28, 2013, to ask a question about a former A&M football coach. Marquardt replied on December 29, 2013, stating that he did not know the answer,” the complaint states.

Bynum says that email exchange jogged Marquardt’s memory that Bynum had sent him a draft of the book in 2010. The Seattle Seahawks were making a run for the Super Bowl that year and its fans were using the Twitter hashtag #12thMan – which Texas A&M licensed to the Seahawks on a limited basis in 2006, then renewed in 2016 for $140,000, according to ESPN.

Bynum believes Marquardt saw an opportunity to burnish Texas A&M’s rights to the mark by posting Bynum’s biography about E. King Gill.

“On January 21, 2014, Bynum discovered that defendants published a near verbatim copy of the Gill Biography — which had never been published or available to the public before — as an article titled ‘The Original 12th Man’ on the A&M Athletic Department website,” the complaint states.

Bynum says Marquardt removed his company’s copyright from the story before posting it, despite the university’s own guidelines to “Respect copyright laws and give credit to sources of written content, images and ideas you reference or use.”

Bynum says he contacted Marquardt the day after Marquardt published the story, and Marquardt immediately took the story down, calling the blatant infringement a “mix-up.”

The lawsuit includes an email Marquardt sent to Bynum after removing the story.

“It was an incredibly coincidental mix-up on my part,” the email said. “I was cleaning my office, which you may recall is generally a cluttered mess. While going through files, I found a story of the 12th Man on some slightly yellowed 8.5x11 paper. I had no recollection of it [sic] origin.

“But I’m always seeking background info on the 12th Man, especially since we joined the SEC and reporters aren’t as familiar with the history of the 12th Man.” (Emphasis in lawsuit.)

By the time the university took the story off its website, it had already gone viral, Bynum says. It was viewed by hundreds of thousands of people, which “destroyed plaintiffs’ prospects for a successful print run,” he adds.

Bynum seeks damages for copyright infringement and violations of the Digital Millennium Copyright Act. He also wants the school to disgorge profits it made from publishing his story.

He is represented by Natalie Arbaugh with Fish & Richardson in Dallas.

A Texas A&M University spokesman declined to comment on the lawsuit.

Follow @cam_langford
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