United States Court of Appeals

for the Fifth Circuit

No. 20-20503

Canada Hockey, L.L.C., doing business as Epic Sports; 

Michael J. Bynum, 

Plaintiffs—Appellants,

versus

Texas A&M University Athletic Department; Alan 

Cannon; Lane Stephenson, in his individual capacity, 

Defendants—Appellees.

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

February 14, 2022

Lyle W. Cayce

Clerk

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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opinion, filed September 8, 2021, is WITHDRAWN, and the following is 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

dismissed all claims against Texas A&M on state sovereign immunity 

grounds and those against two Texas A&M employees for failure to state a 

claim. We AFFIRM.

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. The personnel 

included Brad Marquardt, an Associate Director of Media Relations, and 

Alan Cannon, an Assistant Athletic Director for Media Relations. Marquardt 

reported to Cannon and managed the Athletic Department’s official Twitter 

account dedicated to its football program (@AggieFootball). Cannon handled

media relations for all sports programs in the Athletic Department and 

managed the department’s official website. 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. 

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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 

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, including Cannon and Lane Stephenson, the Director of 

News & Information Services at TAMU, for approval and publication. 

Stephenson was in charge of TAMU’s official Twitter account (@TAMU) 

and “TAMU Times,” which was TAMU’s e-newsletter and website. 

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 in TAMU Times.

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. 

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In 2017, Bynum and Epic Sports filed suit against the TAMU Athletic

Department, the TAMU 12th Man Foundation,1 and employees of the 

Athletic Department. Relevant here, Plaintiffs assert the following claims: (1) 

direct copyright infringement under the Copyright Remedy Clarification Act 

(CRCA), 17 U.S.C. § 501, against the Athletic Department, Cannon, and 

Stephenson; (2) contributory copyright infringement against the same; (3) 

vicarious copyright infringement2 against the Athletic Department; (4) 

violation of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 

1202, against the Athletic Department; (5) violation of the Takings Clause of 

the Texas Constitution against the Athletic Department; and (6) violation of 

the Takings Clause of the U.S. Constitution against the Athletic Department. 

TAMU, on behalf of the Athletic Department, moved to dismiss the 

claims for lack of jurisdiction on state sovereign immunity grounds under 

Federal Rule of Civil Procedure 12(b)(1). Cannon and Stephenson moved to 

dismiss the claims for failure to state a claim under Rule 12(b)(6) and on 

qualified immunity grounds. In March 2019, the district court dismissed 

those claims, but later stayed the case pending the Supreme Court’s decision 

in Allen v. Cooper, 140 S. Ct. 994 (2020). In September 2020, after Allen was 

decided and additional briefing wassubmitted, the district court entered final 

judgment for TAMU, Cannon, and Stephenson. Plaintiffs appeal. 

1 Pursuant to a joint motion, the appeal as to the 12th Man Foundation was 

dismissed. 

2 A direct copyright infringement claim stems directly from the CRCA, but a 

contributory or vicarious infringement claim does not. Nevertheless, though “[the CRCA] 

does not expressly render anyone liable for infringement committed by another, these 

doctrines of secondary liability 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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II. Standard of Review

“We review de novo a district court’s grant of a Rule 12(b)(1) motion 

to dismiss for lack of subject matter jurisdiction because of state sovereign 

immunity.” Meyers ex rel. Benzing v. Texas, 410 F.3d 235, 240 (5th Cir. 2005).

A plaintiff bears the burden of proof that jurisdiction exists. Daniel v. Univ. 

of Tex. Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir. 2020). While legal 

conclusions are reviewed de novo, the district court’s factual findings are 

reviewed for clear error. Kuwait Pearls Catering Co. v. Kellogg Brown & Root 

Servs., Inc., 853 F.3d 173, 178 (5th Cir. 2017).

We review de novo a district court’s grant of a Rule 12(b)(6) motion 

to dismiss for failure to state a claim. Thurman v. Med. Transp. Mgmt., Inc., 

982 F.3d 953, 955 (5th Cir. 2020). We accept all well-pled factual allegations 

as true, viewing them in the light most favorable to the plaintiff. Id. 

III. State Sovereign Immunity

State sovereign immunity divests federal courts of jurisdiction over 

states and their agencies and instrumentalities, unless the state consents to 

suit or Congress has clearly and validly abrogated the state’s sovereign 

immunity. See U.S. Const. amend. XI; Perez v. Region 20 Educ. Serv. Ctr., 

307 F.3d 318, 326 (5th Cir. 2002). “The state need not be the named party in 

a federal lawsuit, for a state’s Eleventh Amendment immunity extends to any 

state agency or entity deemed an ‘alter ego’ or ‘arm’ of the state.” Id.

3

TAMU is inarguably an arm of the state entitled to sovereign immunity. See 

3 “‘Eleventh Amendment immunity’ is a misnomer, however, because that 

immunity is really an aspect of the Supreme Court’s concept of state sovereign immunity 

and is neither derived from nor limited by the Eleventh Amendment. Nevertheless, the 

term ‘Eleventh Amendment immunity’ has been used loosely and interchangeably with 

‘state sovereign immunity’ to refer to a state’s immunity from suit without its consent in 

federal courts.” Meyers, 410 F.3d at 240–41 (citations omitted). 

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U.S. Oil Recovery Site Potentially Responsible Parties Grp. v. R.R. Comm’n of 

Tex., 898 F.3d 497, 501 (5th Cir. 2018).

As noted above, a state’s immunity from suit is not absolute. With 

respect to abrogation, a federal court may entertain a lawsuit against a 

nonconsenting state on two conditions: “First, Congress must have enacted 

‘unequivocal statutory language’ abrogating the States’ immunity from the 

suit. . . . And second, some constitutional provision must allow Congress to 

have thus encroached on the States’ sovereignty. Not even the most 

crystalline abrogation can take effect unless it is ‘a valid exercise of 

constitutional authority.’” Allen, 140 S. Ct. at 1000–01 (citations omitted). 

IV. Claims Against TAMU

Appellants argue that the district court improperly dismissed their 

claims against TAMU on several grounds. They assert that the Athletic 

Department is a separate entity from TAMU and is therefore not an arm of 

the state entitled to sovereign immunity. But even if it were, the district court 

should not have dismissed the copyright infringement and takings claims 

against TAMU. We address each issue in turn.

A. Arm of the State

The district court held that, as a matter of law, the Athletic 

Department lacks jural authority and therefore has no capacity to be sued 

under Federal Rule of Civil Procedure 17. Since the “correct party” 

substitute should be TAMU, the district court held that TAMU, as an arm 

of the state, was entitled to sovereign immunity. 

The parties do not dispute that the Athletic Department lacks jural 

authority to be sued. However, they disagree as to whether the district court 

failed to do a full analysis of the Athletic Department’s arm-of-the-state 

status under the framework set forth in Clark v. Tarrant County, 798 F.2d 736 

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(5th Cir. 1986). In other words, Appellants assert that the Clark framework 

should have been applied, which would have led to the conclusion that the 

Athletic Department itself can be sued, whereas Appellees contend that a 

Clark analysis was not required because TAMU is the proper party. 

We agree with Appellants that under circuit precedent, a court must 

analyze whether an entity qualifies as an arm of the state as a matter of law 

under the Clark framework. See Williams v. Dallas Area Rapid Transit, 242 

F.3d 315, 318–19 (5th Cir. 2001) (“When confronted with a governmental 

entity asserting Eleventh Amendment immunity as an arm of the state, we 

apply the test established in Clark . . . .”) (holding that the district court 

“erred in failing to properly analyze, under Clark, [the entity’s] amenability 

to suit”). A proper inquiry under Clark considers six factors: (1) whether the 

state statutes and caselaw view the agency as an arm of the state; (2) the 

source of funds for the entity; (3) the degree of local autonomy the entity 

enjoys; (4) whether the entity is concerned primarily with local, as opposed 

to statewide, problems; (5) whether the entity has the authority to sue and be 

sued in its own name; and (6) whether the entity has the right to hold and use 

property. Clark, 798 F.2d at 744–45. No one factor is dispositive, though it is 

well established that the second is the “most important,” while the fifth and 

sixth are “less so.” Williams, 242 F.3d at 319 (citing Hudson v. City of New 

Orleans, 174 F.3d 677, 681–82 (5th Cir. 1999)). “The goal of this test is to 

determine ‘whether the suit is in reality a suit against the state itself.’” 

Providence Behavioral Health v. Grant Rd. Pub. Util. Dist., 902 F.3d 448, 456 

(5th Cir. 2018) (quoting Hudson, 174 F.3d at 682). 

The first factor—state law and caselaw—favors treating the Athletic 

Department as an arm of the state. Neither party points to a statute, case, or 

a Texas Attorney General opinion relevant to any athletic department of a 

state university. Texas law, however, suggests that an athletic department of 

a public university is essentially an “auxiliary enterprise” that is an extension 

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of the state. An “auxiliary enterprise” is defined as “a business activity that 

is conducted at a state agency, provides a service to the agency, and is not 

paid for with appropriate money.” Tex. Gov’t Code § 2252.061. 

Auxiliary enterprises, like athletic departments, do not operate for purely 

educational purposes. See Tex. Const. art. VII, §§ 17(f)4 & 18(d).5 But 

these enterprises are nevertheless treated as an extension of a public 

university. See, e.g., Gulf Reg’l Educ. Television Affiliates v. Univ. of Hous., 746 

S.W.2d 803, 808 (Tex. Ct. App. 1988) (concluding that group of school 

districts and parochial schools that produced and broadcast television 

programming was auxiliary enterprise of University of Houston and had no 

authority to file suit without university or State Attorney General’s 

permission). Further, courts have treated athletic departments as auxiliary 

enterprises. See id. (noting that the “University defines an auxiliary 

enterprise as a self-supporting component such as . . . the athletic 

department”); Kneeland v. Nat’l Collegiate Athletic Ass’n, 850 F.2d 224, 226–

27 (5th Cir. 1988) (observing unchallenged district court ruling that “athletic 

departments of Texas state universities were auxiliary enterprises”); see also 

Tanyon T. Lynch, Quid Pro Quo: Restoring Education Primary to College 

Basketball, 12 Marq. Sports L. Rev. 595, 607 n.89 (2002) (“Most Division IA athletics departments are considered ‘auxiliary enterprises’ and, as such, 

are expected to generate revenues sufficient to cover costs.”). Since an 

athletic department of a state-supported university is like an auxiliary 

4 “The funds appropriated by this section [for educational and general activities] 

may not be used for the purpose of constructing, equipping, repairing, or rehabilitating 

buildings or other permanent improvements that are to be used only for student housing, 

intercollegiate athletics, or auxiliary enterprises.”

5 “The proceeds of the bonds or notes issued under Subsection (a) or (b) of this 

section may not be used for the purpose of constructing, equipping, repairing, or 

rehabilitating buildings or other permanent improvements that are to be used for student 

housing, intercollegiate athletics, or auxiliary enterprises.” 

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enterprise, the Athletic Department is similarly an extension of TAMU and 

thus an arm of the state. 

The second factor—source of funds—favors treating the Athletic 

Department as an arm of the state. Though we consider the source of general 

operating funds for the entity, because a principal goal of the Eleventh 

Amendment is to protect state treasuries, the most significant factor in 

assessing an entity’s status is whether a judgment against it will be paid with 

state funds. Williams, 242 F.3d at 320 (citing Richardson v. S. Univ., 118 F.3d 

450, 452 (5th Cir. 1997)). Texas law prohibits any public funds to be used for 

intercollegiate athletic programs, as it requires these programs to be fully selfsupporting. See Tex. Const. art. VII, §§ 17(f) & 18(d); Tex. General

Appropriations Act, 86th Leg., R.S., art. III, § 9 (“[N]o educational and 

general funds appropriated may be used for the operation of intercollegiate 

athletics.”). Thus, the Athletic Department relies wholly on outside funding. 

For instance, in the fiscal year of 2016, it generated approximately $194 

million in revenue from, inter alia, ticket sales, contributions, sale of media 

rights, and advertisements. It receives $0 in student fees, direct state or other 

government support, direct institutional support from TAMU, and indirect 

facilities and administrative support. 

But while the source of the Athletic Department’s operating funds is 

private, it is unclear whether a judgment against the Athletic Department 

would be satisfied with private or state-allocated funds. Appellants have the 

burden to demonstrate that the Athletic Department will be responsible for 

its judgment and debts, not the State. Because they fail to satisfy their burden 

in this respect, this factor supports a finding that the Athletic Department is 

an arm of the state. See Daniel, 960 F.3d at 258 (concluding second factor 

favors finding immunity because plaintiff failed to satisfy burden of showing

that entity would be responsible for judgment and debt, not the state). 

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The third factor—degree of autonomy—favors treating the Athletic 

Department as an arm of the state. The record shows that the Athletic 

Department is a department within, and governed by, TAMU. Scott 

Woodward, the Director of Athletics at TAMU, averred: “I report directly 

to the President of Texas A&M University, Michael K. Young. President 

Young and I stay in frequent contact regarding how the Athletic Department 

is performing.” The organizational chart provided by TAMU indicates that 

Woodward is part of the TAMU President’s cabinet and reports directly to 

the President. Cf. Gulf, 746 S.W.2d at 806–07 (concluding that auxiliary 

enterprise was part of state university where enterprise was managed by 

university employees who reported through chain of command that went up 

to the university’s president). Moreover, policy statements issued by the 

TAMU System Board of Regents demonstrate that TAMU exercises 

oversight over the Athletics Department. For example, the Board requires 

TAMU to “create and maintain an Athletic Council, made up of faculty, 

staff, students, alumni, and community members, to advise the president in 

the development and administration of the intercollegiate athletics 

program,” and that “all intercollegiate athletics programs be maintained in 

an academically and fiscally accountable manner with full compliance with 

conference and national rules.” TAMU also requires athletic agreements 

over $100,000 to be authorized by a university official—generally the 

University Contracts Officer, the Chief Financial Officer, or the President. 

Further, all athletic coaching employment agreements must be authorized by 

the President, and, if over $500,000, with additional approval by the Board 

of Regents. Considering TAMU’s oversight and financial regulation, the 

Athletic Department does not operate with a level of local autonomy to 

consider it independent from the State. 

The fourth factor—scope of problem—favors treating the Athletic 

Department as an arm of the state. Education is a statewide concern, see

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Sissom v. Univ. of Tex. High Sch., 927 F.3d 343, 349 (5th Cir. 2019), and 

though athletic programs do not operate for educational purposes, anyone 

who plays a sport managed by the Athletics Department is a student at 

TAMU, which belongs to the statewide TAMU System. See United States ex 

rel. King v. Univ. of Tex. Health Sci. Ctr.–Hous., 544 F. App’x 490, 495 (5th 

Cir. 2013) (finding that University of Texas Health Science Center addressed 

statewide concerns of education and research, although its facilities were all 

in Houston, as the center belonged to the greater University of Texas System 

which had locations throughout the state). Further, the Athletic Department 

engages in intercollegiate athletics—i.e., competes with other schools—and 

derives financial support from students, alumni, and fans throughout Texas. 

Clark’s fourth factor therefore supports finding the Athletic Department as 

an arm of the state. 

The fifth factor—ability to sue and be sued in its own name—favors 

finding the Athletic Department as an arm of the state. Neither party points 

to a case in which the department was a named party in a lawsuit. 

The sixth factor—right to hold and use property—favors treating the 

Athletic Department as an arm of the state. The Board of Regents retains 

ultimate control of money collected at TAMU, including “receipts from 

school activities.” Tex. Educ. Code § 51.002; see Kneeland, 850 F.2d at 

226–27 (observing unchallenged district court ruling that funds generated by 

athletic departments of state universities were “public funds belonging to the 

State of Texas”). The Athletic Department does not own or purchase real 

property, and any real property used by the Athletic Department is managed 

by the Board of Regents. Tex. Educ. Code § 85.25 (“The board is vested 

with the sole and exclusive management and control of lands and mineral 

interests under its jurisdiction and that may be acquired by it.”). 

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All six Clark factors weigh in favor of finding that the Athletic 

Department is entitled to arm-of-the-state status. Accordingly, we conclude 

that the Athletic Department is a part of TAMU and therefore enjoys state 

sovereign immunity. 

B. Copyright Infringement Claims

Having concluded that the Athletic Department is an arm of the state,

we must next address whether its sovereign immunity is abrogated from the 

copyright infringement claims. Because the Athletic Department is an 

extension of TAMU, we will now refer to the entity as TAMU. 

i. Abrogation

In Allen v. Cooper, 140 S. Ct. 994 (2020), the Supreme Court recently 

addressed whether the Copyright Remedy Clarification Act (CRCA) validly 

abrogated the states’ immunity from copyright infringement suits.6 The 

CRCA provides that a state “shall not be immune, under the Eleventh 

Amendment [or] any other doctrine of sovereign immunity, from suit in 

Federal court” for copyright infringement. 17 U.S.C. § 511(a). Though 

Congress used clear language to abrogate immunity, the Court held that 

Congress had no authority to do so under Article I, which empowers 

Congress to protect copyrights, or Section 5 of the Fourteenth Amendment, 

which authorizes Congress to enact “reasonably prophylactic legislation” 

aimed at preventing states from violating the Fourteenth Amendment. Allen, 

140 S. Ct. at 1004 (citations omitted). With respect to Section 5, the CRCA 

failed the “congruence and proportionality” test because the evidence of 

actual constitutional injury—that is, willful copyright infringement by 

6 The Fifth Circuit addressed this question many years ago and concluded that the 

CRCA was not a valid abrogation of state sovereign immunity from copyright infringement 

suits. See Chavez v. Arte Publico Press, 204 F.3d 601, 605 (5th Cir. 2000). 

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states—was “exceedingly slight.” Id. at 1007. Congress therefore lacked 

authority to broadly abrogate the states’ immunity from copyright 

infringement suits. 

Appellants argue, however, that Allen did not foreclose abrogation of 

sovereign immunity from copyright infringement suits where a state’s 

violation of the CRCA independently constitutes an actual violation of the 

Fourteenth Amendment. Specifically, they allege that TAMU committed 

two independent violations of the Fourteenth Amendment: (1) deprivation 

of property without due process, and (2) takings. Appellants cite to United 

States v. Georgia, 546 U.S. 151 (2006), which held that “insofar as Title II [of 

the Americans with Disabilities Act] creates a private cause of action for 

damages against the States for conduct that actually violates the Fourteenth 

Amendment, Title II validly abrogates state sovereign immunity.” Id. at 159

(emphasis in original) (reviewing whether state violated prisoner’s Eighth 

Amendment right to be free from cruel and unusual punishment, which is 

incorporated in the Due Process Clause of the Fourteenth Amendment). 

Thus, Georgia arguably set forth two categories of abrogation: (1) 

where a statute validly abrogates sovereign immunity for all claims, and (2) 

where a statute is not a valid prophylactic abrogation of all claims, but does 

abrogate sovereign immunity for those claims based on conduct constituting 

an actual violation of the Fourteenth Amendment, for the statutory remedy 

would be congruent and proportional as applied to that case. See id. (directing 

lower courts to determine “on a claim-by-claim basis, (1) which aspects of

the State’s alleged conduct violated Title II; (2) to what extent such 

misconduct also violated the Fourteenth Amendment; and (3) insofar as such 

misconduct violated Title II but did not violate the Fourteenth Amendment, 

whether Congress’s purported abrogation of sovereign immunity as to that 

class of conduct is nevertheless valid”). Appellants contend that this case 

falls in the second category. 

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In support of their position, Appellants cite to National Association of 

Boards of Pharmacy v. Board of Regents of the University System of Georgia

(“NABP”), 633 F.3d 1297 (11th Cir. 2011), where the Eleventh Circuit 

applied Georgia in a copyright infringement suit, observing that “[i]t is well 

established that § 5 grants Congress the authority to abrogate state sovereign 

immunity for violations of the Fourteenth Amendment.” Id. at 1315 (citing 

Georgia, 546 U.S. at 158). There, however, the court ultimately rejected the 

plaintiff’s claim that the copyright infringement amounted to a violation of 

procedural due process, concluding that a pre-deprivation process was not 

feasible under the facts alleged and that adequate post-deprivation remedies 

were provided by the State. Id. at 1318–19. Appellants also point to oral 

argument in Allen, where the State of North Carolina conceded that even if 

the Supreme Court held that the CRCA was not a valid prophylactic 

abrogation of state immunity, Georgia would still provide a remedy for 

copyright infringement constituting an actual violation of the Fourteenth 

Amendment. See Transcript of Oral Argument at 39–40, Allen v. Cooper, 140 

S. Ct. 994 (2020) (No. 18-877) (“[W]henever a plaintiff can reasonably allege 

that there has been intentional copyright infringement and there are not 

adequate remedies, then, under this Court’s Georgia decision, they can bring 

a direct constitutional claim. We don’t dispute that.”). Further, after Allen 

was decided, the district court on remand recently held that the plaintiffs’ 

copyright infringement claim could still proceed because “[a]lthough the 

Supreme Court ruled that the CRCA was unconstitutional insofar as it 

attempted to abrogate sovereign immunity prophylactically . . . the statute 

remains whenever plaintiff alleges both a constitutional violation as well as a 

statutory violation. Therefore, plaintiffs can still use the CRCA as a basis for 

its Georgia claim [alleging that defendants’ conduct amounted to an 

unconstitutional taking].” Allen v. Cooper, -- F. Supp. 3d --, 2021 WL 

3682415, at *11 (E.D.N.C. Aug. 18, 2021).

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ii. Actual Violations of the Fourteenth Amendment

We need not decide whether Georgia extends to copyright 

infringement cases, because even assuming it does, Appellants fail to allege 

that TAMU’s conduct constitutes an actual violation of the Fourteenth 

Amendment. 

First, the copyright infringement claim against TAMU for deprivation 

of property without due process cannot survive dismissal. To come within 

the reach of the procedural requirements of the Due Process Clause, a 

violation must (1) be “intentional, or at least reckless,” and (2) lack adequate 

post-deprivation state remedies. Allen, 140 S. Ct. at 1004. For due process 

purposes, copyrights are a form of property. Id. Appellants sufficiently allege 

that the infringement was intentional—Marquardt directed his secretary to 

retype the Gill Biography, remove any copyright information, and change its 

title and byline to indicate that TAMU owned the work, and then shared it 

with his colleagues for approval and publication. 

However, meaningful post-deprivation state remedies are available to 

redress the injury. Though no tort remedies are available under Texas law,7

Appellants have a viable takings claim against TAMU for copyright 

infringement under the Texas Constitution. More expansive than the federal 

Takings Clause, the Texas Takings Clause provides: “No person’s property 

shall be taken, damaged, or destroyed for or applied to public use without 

adequate compensation being made.” Tex. Const. art. I, § 17. The Clause 

7 Texas has not waived its immunity from tort claims arising out of copyright 

infringement allegations. See Tex. Civ. Prac. & Rem. Code § 101.021(1) (providing 

for limited waiver of governmental immunity for claims of property damage, personal 

injury, or death proximately caused by wrongful or negligent conduct of governmental 

employee arising out of (1) use of publicly owned motor-driven equipment or motor 

vehicle, (2) premises defects, and (3) conditions or uses of certain property).

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itself waives sovereign immunity for a valid takings claim brought in state 

court. Texas v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). Though the Texas 

Supreme Court recently held that a public university’s single act of copyright 

infringement—i.e., displaying a photograph on its website without the 

owner’s authorization—did not constitute a per se taking, it nevertheless left 

the door open for a copyright owner to bring a regulatory takings claim against

the State for infringement. Jim Olive Photography v. Univ. of Hous., -- S.W.3d 

--, 2021 WL 2483766, at *9 (Tex. June 18, 2021); see also id. (Busby, J., 

concurring) (“Nothing in the Court’s opinion should be understood to 

indicate a view on [whether a state’s copyright infringement could in some 

circumstances require compensation] because Olive has alleged no claim 

under the ‘damaged’ or ‘applied’ prongs of the Texas Takings Clause.”). 

Accordingly, because Appellants are not foreclosed from pursuing a takings 

claim in state court, TAMU did not violate their procedural due process 

rights. See McClure v. Biesenbach, 355 F. App’x 800, 805 (5th Cir. 2009)

(“Post-deprivation process is adequate if it allows the prospect of 

compensation for the loss.”) (citing Parratt v. Taylor, 451 U.S. 527, 543–44 

(1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 330–31 (1986)).

Moreover, the copyright infringement claim against TAMU for its

taking of property fails to survive dismissal as well. The Fifth Amendment 

provides that “private property [shall not] be taken for public use, without 

just compensation.” U.S. Const. amend. V. The Takings Clause is made 

applicable to the states by incorporation through the Due Process Clause of 

the Fourteenth Amendment. Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017) 

(citing Chicago Burlington & Q.R.C. v. Chicago, 166 U.S. 226 (1897)). The 

Supreme Court has not addressed whether copyrights are a form of property 

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protected by the Takings Clause.

8 And we need not decide this issue because 

Appellants have failed to plausibly allege a taking.

The Supreme Court has explained that a “basic distinction” exists 

between “individual torts” and “appropriations of a property right.” Cedar 

Point Nursery v. Hassid, 141 S. Ct. 2063, 2078 (2021); see also, e.g., Portsmouth 

Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329–30 (1922) 

(“[W]hile a single act may not be enough, a continuance of them in sufficient 

number and for a sufficient time may prove [the intent to take property]. 

Every successive trespass adds to the force of the evidence.”).

This court has illuminated the principle that not all torts (i.e., 

infringements) rise to the level of a taking. In Porter v. United States, 473 F.2d 

1329, 1337 (5th Cir. 1973), where the widow of Lee Harvey Oswald sought 

compensation for the taking of property by the United States, we held: 

We turn finally to the question whether Mrs. Porter can 

recover for the diminution in value of Oswald’s writings 

attributable to their publication in the Warren Commission 

Report. It is, of course, quite plain that the recovery sought 

here is for infringement by the government of Mrs. Porter’s 

common law copyright interest in Oswald’s writings. Such 

infringement is not a “taking” as the term is constitutionally 

8 The Supreme Court, however, has recognized that other forms of intellectual 

property are protected by the Takings Clause. See Horne v. Dep’t of Agric., 576 U.S. 350, 

359–60 (2015) (patents); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (trade 

secrets). And, a handful of sister circuits have suggested that copyrights are protected by 

the Takings Clause. See CCC Info. Servs., Inc. v. Maclean Hunter Market Reports, Inc., 44 

F.3d 61, 74 (2d Cir. 1994) (“[A] rule that the adoption of such a reference by a state 

legislature or administrative body deprived the copyright owner of its property would raise 

very substantial problems under the Takings Clause of the Constitution.”); Lane v. First 

Nat’l Bank of Boston, 871 F.2d 166, 174 (1st Cir. 1989) (suggesting if state remedies do not 

afford just compensation for copyright infringement, “the Takings Clause of the federal 

Constitution might at that point enable [owner] to pursue a damage remedy in federal 

court”).

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understood. Rather, it has always been held that infringement 

of copyright, whether common law, Twentieth Century Fox Film 

Corp. v. Dieckhaus, 153 F.2d 893 (CA 8, 1948), or statutory, 

Turton v. United States, 212 F.2d 354 (CA 6, 1954) constitutes 

a tort.

Like Porter, Appellants have failed to meet their burden that the 

purported infringement amounts to a constitutional taking: The alleged 

direct infringement was the public display of the book for four total days, and 

the indirect infringement likewise stems from these four days. Appellants 

have failed to plausibly allege that TAMU continued or repeated any 

infringement—direct or indirect—such that the claim amounts to a taking 

for Fifth Amendment purposes. Accordingly, in these circumstances, the 

copyright infringement claim based on a takings allegation fails. 

C. Takings Claims

We next address whether TAMU’s sovereign immunity is abrogated 

from the federal and state takings claims, which were pleaded in the 

alternative to the copyright infringement claims. 

A state is entitled to sovereign immunity from a federal takings claim. 

Bay Point Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d 454, 457 (5th Cir. 

2019) (affirming dismissal of takings claim against Mississippi on sovereign 

immunity grounds). Appellants argue, however, that immunity is abrogated 

when no remedy is available in state court. They cite to Williams v. Utah 

Department of Corrections, 928 F.3d 1209, 1213 (10th Cir. 2019), which 

suggests that a takings claim is barred only “as long as a remedy is available 

in state court.” Because we have concluded that Appellants can pursue a 

claim under the Texas Takings Clause, state sovereign immunity bars the 

federal takings claim here. See supra IV.B. 

A state is also entitled to sovereign immunity from a state takings 

claim brought in federal court. In Pennhurst State School and Hospital v. 

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Halderman, 465 U.S. 89, 119–21 (1984), the Supreme Court held that federal 

courts are barred from hearing state law claims against a state, reasoning that 

such claims cannot be maintained because supplemental jurisdiction does not 

abrogate the state’s sovereign immunity. Further, even though the Texas 

Takings Clause waives immunity for state takings claims brought in state 

court, “[w]aiver of sovereign immunity in state courts does not waive 

Eleventh Amendment immunity from suit in federal court.” Guetersloh v. 

Texas, 25 F.3d 1044 (5th Cir. 1994) (unpublished) (citing Pennhurst, 465 U.S. 

at 99 n.9). Accordingly, sovereign immunity bars the state takings claim.

V. Claims Against Cannon and Stephenson

Lastly, we address the direct copyright infringement claim against 

Cannon, and the contributory copyright infringement claims against Cannon 

and Stephenson. 

A. Direct Copyright Infringement

Direct copyright infringement requires proof of two elements: “(1) 

ownership of a valid copyright, and (2) copying of constituent elements of the 

work that are original.” BWP Media USA, Inc. v. T&S Software Assocs., Inc., 

852 F.3d 436, 439 (5th Cir. 2017) (quoting Feist Publ’ns, Inc. v. Rural Tel. 

Serv. Co., 499 U.S. 340, 361 (1991)). The purported infringer must have acted 

with “volitional conduct,” id.—that is, “[t]here must be actual infringing 

conduct with a nexus sufficiently close and causal to the illegal copying that 

one could conclude that the machine owner himself trespassed on the 

exclusive domain of the copyright owner.” Id. at 440 (quoting CoStar Grp., 

Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004)) (internal quotation 

marks omitted).

The allegations do not support the reasonable inference that Cannon 

directly infringed the copyright. Marquardt did the actual recopying—he, not 

Cannon, retyped the Gill Biography and scrubbed off all copyright 

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information to present it as TAMU’s work. Cannon never received the 

original work and only received the infringed work from Marquardt. He had 

no actual or constructive knowledge of the infringement. Accordingly, we 

affirm dismissal of the direct copyright infringement claim against Cannon 

for failure to state a claim. 

B. Contributory Copyright Infringement

“Contributory infringement is ‘intentionally inducing or encouraging 

direct infringement.’” Geophysical Serv., Inc. v. TGS-NOPEC Geophysical 

Co., 850 F.3d 785, 798 (5th Cir. 2017) (quoting Metro-Goldwyn-Mayer Studios 

Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)). In other words, “[a] party is 

liable for contributory infringement when it, ‘with knowledge of the 

infringing activity, induces, causes or materially contributes to infringing 

conduct of another.’” Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 

772, 790 (5th Cir. 1999) (citation omitted). 

The allegations do not support the reasonable inference that Cannon 

or Stephenson contributorily infringed the copyright. Again, Cannon had no 

knowledge of the underlying infringement—he never received the original 

work and only received the infringing article from Marquardt. There was no 

intent or even knowledge on Cannon’s part with respect to the infringement. 

Further, Stephenson also lacked the requisite knowledge or intent to commit 

infringement. He did not receive the original draft of Bynum’s book, as he 

only received the retyped article from Marquardt and reasonably assumed it 

was not an infringed piece of writing. Accordingly, we affirm dismissal of the 

contributory copyright infringement claims against Cannon and Stephenson 

for failure to state a claim.

VI. Conclusion

For the foregoing reasons, we AFFIRM.

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