Case: 20-20530 Document: 00516180318 Page: 1 Date Filed: 01/26/2022
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`
`
`United States Court of Appeals
`for the Fifth Circuit
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`
`No. 20-20530
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`Canada Hockey, L.L.C., doing business as Epic Sports;
`Michael J. Bynum,
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`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`January 26, 2022
`
`Lyle W. Cayce
`Clerk
`
`
`
`
`Brad Marquardt,
`
`
`versus
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`Plaintiffs—Appellees,
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`Defendant—Appellant.
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`
`
`
`
`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:*
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`
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`* 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`opinion should not be published and is not precedent except under the limited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.
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`

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`Case: 20-20530 Document: 00516180318 Page: 2 Date Filed: 01/26/2022
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`No. 20-20530
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`IT IS ORDERED that the petition for rehearing is DENIED. The
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`opinion, filed September 8, 2021, is WITHDRAWN, and the following is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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`Case: 20-20530 Document: 00516180318 Page: 3 Date Filed: 01/26/2022
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`No. 20-20530
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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
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`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
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`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
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`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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`Case: 20-20530 Document: 00516180318 Page: 4 Date Filed: 01/26/2022
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`No. 20-20530
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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
`
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`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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`Case: 20-20530 Document: 00516180318 Page: 5 Date Filed: 01/26/2022
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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.
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`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.
`
`
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`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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`No. 20-20530
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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.
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`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
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`“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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`No. 20-20530
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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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`No. 20-20530
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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)).
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`IV. Conclusion
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`For the foregoing reasons, we DISMISS the appeal for lack of
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`jurisdiction.
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