Texas A&M Accused Of Committing Copyright Infringement In Effort To Bolster Trademark Protection For '12th Man'

from the live-by-the-ip,-die-by-the-ip dept

I'm not sure there is a more annoying group of stories about trademark protectionism than that of the "12th Man." What most likely assume is a common term at football games, popularly denoting the impact a raucous crowd can have on the opposing team, is actually a closely guarded trademarked term of Texas A&M. So closely guarded, in fact, that the school has not only policed use of the term by other football organizations, but it has also seen fit to threaten breweries and double-amputees over their use of the term. So concerned is Texas A&M by the moral position on intellectual property, in other words, that there are no limits on how it will act to protect its trademark.

That includes violating someone else's intellectual property, it seems. It appears the university is being sued for copyright infringement after having posted on its website a large swath of an unpublished book by an author on the history of Texas A&M, all in order to bolster its own claims on the trademark for the "12th Man."

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employees on Thursday in the Southern District of Texas, claiming the athletic department posted the “heart” of his unpublished book “12th Man: The Life and Legend of Texas A&M’s E. King Gill” on its website “nearly word-for-word” in January 2014 without his permission... 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.

Shortly after a follow-up email exchange to Marquardt about the book, the infringing post made up of a draft Bynum had sent to the defendants suddenly appeared on the school's website. Gone from the post was the copyright notice Bynum had included on his draft, along with apparently any attribution to Bynum himself as the author of the work. That post was then used to bolster the ownership claim to the "12th Man" by the school against the Seattle Seahawks, with whom the school eventually worked out a licensing deal for the term. In other words, Texas A&M committed copyright infringement in order to try and protect a fairly generic trademark.

Now, in fairness to Marquardt and the school, the post was taken down when Bynum called the next day to complain. Marquardt even offered the following explanation for how this all happened in an email to Bynum.

“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 8.5×11 paper. I had no recollection of it [sic] origin.

Look, for the everyday man, this kind of incidental copyright infringement might seem like a reasonable mistake to have made. But, of course, this is Texas A&M we're talking about, and the school is super into intellectual property protection. Certainly its officials ought to know better than to simply post anything they might find on yellowing printer paper that happens to be lying around the office from who-knows-where? And the taking down of the post might have been fine if the school's post hadn't managed to go viral almost immediately after it had been posted.

It's sort of fun how you can pretty much set your watch to how those who are the most vociferous in protecting intellectual property will be caught violating it.


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  • icon
    hij (profile), 1 Feb 2017 @ 4:51pm

    Schools and intellectual copyright.....

    and the school is super into intellectual property protection.

    The Bayh-Dole act has had a corrosive effect on higher education. A publicly supported school has no business acting so aggressively to take sole possession of any idea. The idea that this is about football in Texas seems to have overshadowed the larger implications about how public institutions are supposed to serve their constituents.

    Disclaimer: Sadly, my own institution is not without sin on this, and this is a nationwide problem.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2017 @ 6:32am

      Re: Schools and intellectual copyright.....

      The Bayh-Dole act has had a corrosive effect on higher education.

      It was a corruption of higher education.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2017 @ 4:53pm

    Not very good at copyright trolling

    Texas A&M should read more Techdirt. They could have learned from past copyright trolls that it is better to bury the text in an obscure place granting yourself a pre-dated copyright claim and then wait for the book to be published. You can claim copyright infringement and claim all of the book's profits.

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 1 Feb 2017 @ 5:05pm

    Wikipedia: 12th man (football): history

    The term "12th man" was part of popular culture for at least a couple decades before Texas A&M's first known use, and widely used by all for 90 years before they trademarked it.

    It's their "property" only in that they've stolen it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Feb 2017 @ 6:29pm

      Re:

      Think about Disney when you think about this type of stolen "property".

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 1 Feb 2017 @ 8:35pm

        Re: Re:

        I'm not sure that even Disney matches Texas A&M's theft.

        One can still publish their own Beauty and the Beast, Little Mermaid, Brother's Grim or 20,000 Leagues Under the Sea movies, pictures and stories for commercial purposes. While Honey, I Blew Up the Kid is locked down, you can still blow up a kid without worrying about IP litigation.

        But "12th man" trademark, even though "12th man" was already in public use before Texas A&M's came along, means that they own it and will sue anyone else who tries to use it. Apparently even across other industries.

        reply to this | link to this | view in chronology ]

  • identicon
    bob, 1 Feb 2017 @ 5:33pm

    Is this the 12th hour for the 12th man?

    Stay tuned for next weeks episode of copyright lives.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 1 Feb 2017 @ 5:39pm

      Re:

      Reality TV finally finds a reason for copyright to continue, but not for the reasons that many rights holders think. The excitement of the adventures of hangers on who cling to their parents copyrights are not only fascinating, but hilarious. Be sure to watch (re-runs will be aired on the MSNBC channel within a year or two or so).

      reply to this | link to this | view in chronology ]

  • icon
    ByteMaster (profile), 1 Feb 2017 @ 5:44pm

    Soccer

    This is also a well-known term used in soccer.

    It's about time "creative people" get the same treatment as "innovative people" 20 year patent, 20 year copyright. That's how long you have to monetize your monopoly, after that the creation/invention gets to benefit society in the public domain. Lots of problems solved.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 1 Feb 2017 @ 10:19pm

      Re: Soccer

      Trademarks are a different animal. But it would be good if there were more sense in granting them.

      reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 1 Feb 2017 @ 10:27pm

        Re: Re: Soccer

        I'm sorry, perhaps you were referring to the copyright infringed by A&M. Which would not even be 20 years old.

        The point is, IP maximalists frequently infringe while demanding harsh punishments for infringements and even things that are clearly fair use. The trademark maximalists are wildly and ridiculously overprotective.

        But yes, aside from time limits, there are a lot of other things that need to be addressed in those systems.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2017 @ 6:29am

      Re: Soccer

      It's about time "creative people" get the same treatment as "innovative people" 20 year patent, 20 year copyright.

      Zero years for both would be better.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2017 @ 12:00am

    Thats Not Right

    This is a common term in a sport played outside the USA
    A sport Called Cricket.

    does this mean if that if that sport is broadcast insid the US on some cable sport channel and the channel is too cheap to use A US voice-over of the original English Language commentary, the channel will be sued if that real common expression is used?

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 2 Feb 2017 @ 3:12am

    Aha, live by the sword, die by the sword.

    reply to this | link to this | view in chronology ]

  • icon
    Flakbait (profile), 2 Feb 2017 @ 5:09am

    Didn't Barry Goldwater say, "I would remind you that plagiarism in the defense of copyright is no vice!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 9:08am

    "Look, for the everyday man..."

    That is a direct infringement on my trademark "everyday man," man.
    Have your person call my man, man.

    Signed
    Hippy Dippy weather man, man.

    reply to this | link to this | view in chronology ]


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