State Infringement of Copyright Cannot Proceed in Federal Court, Fifth Circuit Says
When there is a right, there is a remedy—or so the maxim goes. But when a state infringes upon your copyright, such a remedy may be more difficult to obtain. Just a year ago, the Supreme Court held in Allen v. Cooper that the Copyright Remedy Clarification Act did not abrogate a state’s sovereign immunity, and therefore, absent consent, sovereign immunity prevents suits for copyright infringement against a state. Are there any exceptions to this rule? Are there alternatives causes of action or remedies available? That is the question plaintiffs-appellants posed in Canada Hockey, L.L.C. v. Texas A&M Univ. Athletic Dep’t. And the answer, at least in federal court in the Fifth Circuit, is no, though the Fifth Circuit left open the possibility for recovery in state court.
Sportswriter Michael J. Bynum filed his lawsuit in federal court in Texas against the Texas A&M University Athletic Department and various employees. Bynum was writing a book about E. King Gill, the “12th Man” of Texas A&M college football, and Gill’s impact on Texas A&M sports. The 12th Man, according to school tradition, dates back to a 1920s football game where many of Texas A&M’s players were knocked out by injuries. During the middle of the game, and concerned that his team would be unable to field the eleven players needed, the head coach waved Gill down from the sideline to suit up. Though Gill did not see playing time, his actions personified the “unity, the loyalty, and the willingness of Aggies to serve when called to do so.”
Bynum, according to his complaint, researched the 12th Man story for years. He hired Whit Canning to write, based on Bynum’s research, a short biography about Gill, which would serve as the opening chapter of Bynum’s book. Bynum emailed Brad Marquardt, an Associate Director of Media Relations for Texas A&M, asking for photographs to include in his book. In the email, he included a draft PDF version of his book. Bynum alleged Marquardt directed his secretary to retype the opening chapter about Gill so it could be used by the Athletic Department’s website. The final version omitted any reference to Bynum, or any indication of its original source. This suit followed. The district court dismissed the claims against the Athletic Department for lack of jurisdiction on state sovereign immunity grounds, and against two of the defendant individual employees for failure to state a claim and on qualified immunity grounds, which Bynum appealed.
Appellants asserted various theories as to why Allen v. Cooper did not preclude this suit. First, they argued that the Athletic Department is a “separate entity” from Texas A&M, therefore not an “arm of the state” entitled to sovereign immunity. Applying circuit precedent, the Fifth Circuit soundly rejected this argument, finding that all six factors supported finding the Athletic Department an “arm of the state” and thus entitled to state sovereign immunity.
Second, appellants argued that sovereign immunity from copyright infringement could still be abrogated where a state’s violation constitutes an actual violation of the Fourteenth Amendment, asserting Texas A&M’s actions were both deprivation of property without due process and a takings. Appellants analogized to United States v. Georgia, which held that Title II of the Americans with Disabilities Act validly abrogated state sovereign immunity for conduct that actually violated the Fourteenth Amendment, and cited to out of circuit authorities for the same holding in the copyright context.
The Fifth Circuit deemed it unnecessary to decide the legal question because, even assuming actual violations could abrogate state sovereign immunity, the appellants failed to allege the Athletic Department actually violated the Fourteenth Amendment. Though the Supreme Court has not decided whether copyrights are a form of property protected by the Takings Clause, established Fifth Circuit precedent holds copyrights are not protected. Nor did appellants allege violations of due process. For a claim of deprivation of property without due process, plaintiffs must meet two requirements: that a violation (1) is intentional, or at least reckless; and (2) lacks adequate post-deprivations state remedies. While appellants sufficiently alleged the infringement was intentional, the Court found meaningful post-deprivation state remedies were available. Specifically, the Court determined that Texas would permit a takings claim under state law for takings of a copyright. However, such a claim must be advanced in state court, as sovereign immunity likewise forbids federal courts from hearing state law claims against a state, absent consent of the state. Thus, the Court affirmed the dismissal for claims against the Athletic Department.
Bynum also asserted claims against various employees of the Athletic Department. In this case, the Court upheld the dismissal for failure to state a claim of direct or contributory copyright infringement, holding that the alleged acts by the two employee defendants failed to meet the requirements for either claim. However, in a separate appeal by a different defendant in the same original case, Canada Hockey, L.L.C. v. Marquardt, this very same panel did not disturb the trial court’s denial of summary judgment motion by the defendant and dismissed the appeal for lack of jurisdiction. In addition to state law remedies, an individual whose copyright is infringed by the state may have success suing the individual who caused the infringement.