Can Hockey v. Marquardt ( 2022 )


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  • Case: 20-20530     Document: 00516180318         Page: 1     Date Filed: 01/26/2022
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    January 26, 2022
    No. 20-20530                          Lyle W. Cayce
    Clerk
    Canada Hockey, L.L.C., doing business as Epic Sports;
    Michael J. Bynum,
    Plaintiffs—Appellees,
    versus
    Brad Marquardt,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:17-CV-181
    ON PETITION FOR REHEARING
    Before Owen, Chief Judge, Smith and Graves, Circuit Judges.
    James E. Graves, Jr., Circuit Judge:*
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 20-20530     Document: 00516180318           Page: 2   Date Filed: 01/26/2022
    No. 20-20530
    IT IS ORDERED that the petition for rehearing is DENIED. The
    opinion, filed September 8, 2021, is WITHDRAWN, and the following is
    SUBSTITUTED:
    Michael J. Bynum and his publishing company sued Texas A&M
    University and its employees after they published a part of Bynum’s
    forthcoming book without permission. Relevant here, the district court
    denied summary judgment for Brad Marquardt, a Texas A&M employee. We
    DISMISS for lack of jurisdiction.
    I. Background
    For purposes of this appeal, we accept the factual allegations stated in
    the complaint as true. See, e.g., Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009).
    Michael J. Bynum is a sportswriter and editor that operates his own
    publishing company, Canada Hockey LLC d/b/a Epic Sports (“Epic
    Sports”). In 1980, Bynum became interested in the “12th Man” lore while
    working on his first book about Texas A&M University’s (TAMU) football
    program. Plaintiffs describe the 12th Man story as follows:
    The University’s now famous 12th Man tradition was inspired
    by the actions of E. King Gill at the 1922 football game known
    as the “Dixie Classic.” Gill, a squad player for A&M’s football
    team, who was already training with the university’s basketball
    team, was up in the press box watching his team face the then
    top-ranked Prayin’ Colonels of Centre College, when he was
    waved down to the sideline before halftime to suit up in case
    his injured team ran out of reserve players. Gill stood on the
    sideline, ready to play, for the remainder of the game.
    Gill's commitment to step up for his team when in need later
    became a legend that was passed down from generation to
    generation of Aggies. Today, the 12th Man tradition is a symbol
    of the Aggies’ unity, loyalty, and willingness to serve when
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    called upon to do so, and is woven into many aspects of life at
    A&M.
    In 1990, TAMU registered “12th Man” as a trademark and has since
    aggressively enforced it.
    Intrigued by the story, Bynum decided to write about Gill and his
    impact on TAMU’s football program for a forthcoming book titled 12th Man.
    For many years, Bynum researched Gill and the 12th Man story, including
    reviewing primary documents, visiting relevant locations, and conducting
    interviews with personnel in TAMU’s Athletic Department, including Brad
    Marquardt, an Associate Director of Media Relations. Eventually, Bynum
    hired Whit Canning to write a short biography about Gill (the “Gill
    Biography”), titled “An A&M Legend Comes to Life,” which Bynum
    planned to use as the opening chapter of his book.
    In June 2010, Bynum emailed Marquardt seeking photographs to
    include in his book, sending along a draft of the book in PDF form. In the
    email, Bynum specified that the PDF was “a draft version of the 12th Man
    Book” and “a work in progress . . . not in final form yet.” The draft contained
    Bynum’s name, copyright date, an indication that Epic Sports owned the
    copyright to the book, and a statement that “no part of the book may be
    reproduced or used in any form or by any means . . . without the permission
    of the publisher.” The Gill Biography was the opening chapter of the book.
    Bynum continued to email Marquardt as late as December 2013, asking
    questions related to the book. Bynum planned to publish his 12th Man book
    in the fall of 2014.
    In January 2014, TAMU’s Athletic Department directed its staff to
    find background information on Gill that could be used to promote the 12th
    Man story and raise money. Marquardt directed his secretary to retype the
    Gill Biography that Bynum sent to Marquardt in 2010; remove any references
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    to Bynum or Epic Sports; rewrite the byline to read “by Whit Canning,
    special to Texas A&M Athletics” to suggest that Canning was commissioned
    to write the Biography exclusively for the Athletic Department; and change
    the original title of the Biography from “An A&M Legend Comes to Life” to
    “The Original 12th Man.” Marquardt provided the retyped Biography to his
    work colleagues.
    Soon after, the Athletic Department published the contents of the Gill
    Biography as an article on its website. Then, on January 19, 2014, both
    TAMU and its Athletic Department tweeted a link to the article on their
    respective Twitter accounts. The posts were retweeted and discussed by
    news sources. The article was also featured on the TAMU Times’ e-
    newsletter and website.
    On January 22, 2014, Bynum emailed Marquardt and another
    employee of the Athletic Department requesting immediate removal of the
    article. Several hours later, Marquardt responded that the article was no
    longer on the website, apologized for the “mix-up,” and asked whether it
    would “be possible to post the story as an ‘excerpt’ to [his] book.” He also
    stated: “I asked my secretary to key [the Biography] in for me which she
    did.” Though the article was removed, it was shared by others and reposted
    on various online forums. The book remains unpublished.
    In 2017, Bynum and Epic Sports filed suit against the TAMU Athletic
    Department, the TAMU 12th Man Foundation, and employees of the
    Athletic Department, including Marquardt. Relevant here, Plaintiffs assert
    against Marquardt direct and contributory copyright infringement claims
    under the Copyright Remedy Clarification Act (CRCA), 
    17 U.S.C. § 501
    , 1 as
    1
    A direct copyright infringement claim stems directly from the CRCA, but a
    contributory claim does not. Nevertheless, though “[the CRCA] does not expressly render
    anyone liable for infringement committed by another, these doctrines of secondary liability
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    well as a claim under the Digital Millennium Copyright Act (DMCA), 
    17 U.S.C. § 1202
    .
    Marquardt moved to dismiss the claims on qualified immunity
    grounds, which the district court denied. After discovery, Marquardt moved
    for summary judgment, as did Plaintiffs. The district court denied both
    motions for summary judgment, concluding that genuine issues of material
    fact exist as to whether Plaintiffs obtained a valid copyright in the Gill
    Biography. Marquardt appeals. The district court certified the appeal as
    frivolous.
    II. Jurisdiction
    Ordinarily, we do not have jurisdiction to review a denial of a summary
    judgment motion because such a decision is not final within the meaning of
    
    28 U.S.C. § 1291
    . Gobert v. Caldwell, 
    463 F.3d 339
    , 344 (5th Cir. 2006).
    However, a district court’s denial of summary judgment on the basis of
    qualified immunity is immediately appealable under the collateral order
    doctrine, to the extent that it turns on a matter of law. Trent v. Wade, 
    776 F.3d 368
    , 376 (5th Cir. 2015). “When a district court denies an official’s motion
    for summary judgment predicated upon qualified immunity, the district court
    can be thought of as making two distinct determinations, even if only
    implicitly.” Heaney v. Roberts, 
    846 F.3d 795
    , 800 (5th Cir. 2017) (internal
    quotation marks and citation omitted). These determinations are: (1) a
    certain course of conduct would, as a matter of law, be objectively
    unreasonable in light of clearly established law; and (2) a genuine issue of fact
    exists regarding whether the defendant did, in fact, engage in such conduct.
    emerged from common law principles and are well established in the law.” Metro-Goldwyn-
    Mayer Studios Inc. v. Grokster, Ltd., 
    545 U.S. 913
    , 930 (2005) (internal quotation marks and
    citations omitted).
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    Id.
     We lack jurisdiction to review the second type on interlocutory appeal. 
    Id.
    In other words, “we cannot challenge the district court’s assessments
    regarding the sufficiency of the evidence—that is, the question whether there
    is enough evidence in the record for a jury to conclude that certain facts are
    true.” Trent, 776 F.3d at 376 (quoting Kinney v. Weaver, 
    367 F.3d 337
    , 347
    (5th Cir. 2004) (en banc)).
    Although we lack jurisdiction to resolve “the genuineness of any
    factual disputes,” we do have jurisdiction to determine “whether the factual
    disputes are material.” Kovacic v. Villarreal, 
    628 F.3d 209
    , 211 n.1 (5th Cir.
    2015). “So, we review the complaint and record to determine whether,
    assuming that all of [the plaintiff’s] factual assertions are true, those facts are
    materially sufficient to establish that defendants acted in an objectively
    unreasonable manner. Even where . . . the district court has determined that
    there are genuine disputes raised by the evidence, we assume plaintiff’s
    version of the facts is true, then determine whether those facts suffice for a
    claim . . . under these circumstances.” Wagner v. Bay City, 
    227 F.3d 316
    , 320
    (5th Cir. 2000).
    We give de novo review to the legal issues relating to qualified
    immunity. King v. Handorf, 
    821 F.3d 650
    , 653 (5th Cir. 2016).
    III. Qualified Immunity
    “The doctrine of qualified immunity protects government officials
    ‘from liability for civil damages insofar as their conduct does not violate
    clearly established statutory or constitutional rights of which a reasonable
    person would have known.’” Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009)
    (quoting Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982)). To establish that
    qualified immunity does not apply, the plaintiff must prove that the state
    actor (1) violated a statutory or constitutional right, and (2) that the right was
    “clearly established” at the time of the challenged conduct. King, 
    821 F.3d
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    at 653. “The relevant, dispositive inquiry in determining whether a right is
    clearly established is whether it would be clear to a reasonable [official] that
    his conduct was unlawful in the situation he confronted.” Porter v. Epps, 
    659 F.3d 440
    , 445 (5th Cir. 2011) (quoting Saucier v. Katz, 
    533 U.S. 194
    , 202
    (2001)).
    Marquardt argues that the district court erred in denying summary
    judgment on the basis of qualified immunity for both the copyright
    infringement and DMCA claims. We address each claim in turn.
    A. Copyright Infringement
    In denying Marquardt’s motion for summary judgment, the district
    court rejected his qualified immunity defense to the copyright infringement
    claims, concluding that a genuine issue of fact exists as to the ownership of
    the copyright in the Gill Biography. On appeal, Marquardt argues that he is
    entitled to qualified immunity because Plaintiffs cannot prove that he
    violated their statutory right—that is, Plaintiffs cannot show that they owned
    the copyright at the time of the alleged violation.
    A copyright vests initially in the author of the work, unless the work is
    “made for hire,” in which case the ownership of the copyright vests initially
    in the employer or commissioner of the work. 
    17 U.S.C. § 201
    (a) & (b).
    According to Marquardt, Plaintiffs did not enter a valid work for hire
    agreement with Canning and therefore did not own the copyright when the
    violation occurred. He contends that Bynum’s declaration averring
    otherwise is not sufficient to prove that the arrangement was a work for hire.
    Further, because Plaintiffs cannot produce the original contract from 1997
    (when the agreement was allegedly made) and have only produced a written
    agreement created a month after the copyright violation occurred, no
    reasonable factfinder could find the copyright initially vested in Bynum in a
    work for hire relationship.
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    This is a classic argument that the factual dispute is not genuine, over
    which we lack jurisdiction. Indeed, Marquardt’s attack on the district court’s
    conclusion that a genuine issue of fact exists over the ownership of the
    copyright mirrors his arguments made before the district court, which held:
    Defendant’s motion [for summary judgment], which is based
    on his contention that Plaintiffs did not acquire the rights to the
    Canning article (the subject matter of this suit) until February
    5, 2014—a month after the alleged infringement—is
    controverted by Bynum’s own declaration that he had obtained
    those rights years earlier. Bynum avers that Canning was hired
    to write the article about E. King Gill in the late 1990s and that
    he or his company have always owned the rights to it since as
    early as 1997 or 1998. This raises a fact issue. The fact that
    Bynum cannot locate the actual written contract may prove
    fatal in front of the jury, but it does not diminish the fact that
    his own declaration raises a fact issue. Additionally, a copy of
    the actual Canning article that Defendant possessed is attached
    to his declaration and it demonstrates on the first page that one
    of the Plaintiffs has a 1998 copyright. While the Canning
    affidavit would provide additional support for this claim, an
    issue of material fact exists with it or without it.
    Marquardt’s challenge of the denial of summary judgment on the copyright
    infringement claims goes to the genuineness of the factual dispute, not its
    materiality, and we therefore dismiss this part of the appeal for lack of
    jurisdiction.
    B. DMCA
    Next, Marquardt argues that he is entitled to qualified immunity with
    respect to the DMCA claim because Plaintiffs’ statutory right was not
    “clearly established” at the time of the alleged violation. The DMCA
    prohibits unauthorized removal or alteration of “copyright management
    information,” such as the title, the author, or copyright owner of the work.
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    17 U.S.C. § 1202
    (c). Marquardt contends that it was not clearly established
    at the time of the alleged violation that the information removed from the Gill
    Biography was “copyright management information” protected by the
    DMCA.
    We decline to consider the merits of Marquardt’s qualified immunity
    defense against the DMCA claim because it is untimely. Marquardt first
    raised his defense in a motion to dismiss, which was rejected by the district
    court. Marquardt did not appeal the ruling, but raised qualified immunity
    again at summary judgment, noting that “the weakness of Plaintiffs’
    arguments that they own the copyright in the first place are now apparent,”
    such that there was no clearly established right at the time of the alleged
    violation. Now, in the instant appeal of the denial of summary judgment, he
    seeks appellate review of the district court’s prior ruling on his motion to
    dismiss, contending that the motion-to-dismiss denial is “merged into” the
    summary judgment denial.
    Not so. A district court’s denial of a motion to dismiss on the basis of
    qualified immunity is a final appealable decision within the meaning of 
    28 U.S.C. § 1291
    . Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985); see Behrens v.
    Pelletier, 
    516 U.S. 299
    , 308 (1996) (making clear that an appeal is available
    from denials of an immunity defense at both the pleading and summary
    judgment stages). The denial is subject to the 30-day time limit for appeal.
    Fed. R. App. P. 4(a)(1)(A). Therefore, Marquardt had 30 days after the
    district court denied his motion to dismiss to file a notice of appeal. Having
    failed in this, Marquardt now attempts to revisit the identical qualified
    immunity argument on appeal via his summary judgment motion, which,
    notably, is premised upon the “weakness of Plaintiffs’ arguments” and not
    the absence of triable issues of fact. This approach is improper. See Armstrong
    v. Tex. State Bd. of Barber Examiners, 
    30 F.3d 643
    , 644 (5th Cir. 1994)
    (dismissing as untimely appeal of summary judgment denial, where
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    defendants raised the same pleadings-based qualified immunity defense in
    both the motion to dismiss and motion for summary judgment, but failed to
    appeal prior denial of the motion to dismiss).
    We conclude that, for purposes of this appeal, Marquardt lost his right
    to challenge the denial of qualified immunity against the DMCA claim,
    because it is premised upon the same arguments as his non-appealed motion
    to dismiss. Accordingly, we dismiss this part of the appeal for lack of
    jurisdiction due to untimeliness. See Sudduth v. Tex. Health & Human Servs.
    Comm’n, 
    830 F.3d 175
    , 177 (5th Cir. 2016) (“It is well established ‘that the
    timely filing of a notice of appeal in a civil case . . . is a jurisdictional
    requirement.’”) (quoting Bowles v. Russell, 
    551 U.S. 205
    , 214 (2007)).
    IV. Conclusion
    For the foregoing reasons, we DISMISS the appeal for lack of
    jurisdiction.
    10