IP Law Daily, COPYRIGHT—N.D. Miss.: Judge dismisses copyright lawsuit against Ole Miss coach Lane Kiffin over motivational tweet, (Dec 18, 2024)

By George Basharis, J.D.

Football coach’s sharing of “Winning Isn’t Normal” passage is protected under fair use doctrine.

A federal court has dismissed a copyright infringement lawsuit against University of Mississippi head football coach Lane Kiffin over his Twitter posting of a motivational passage, delivering a scathing rebuke of what the court called the plaintiff’s pattern of abusive copyright litigation. Following Fifth Circuit precedent, the U.S. District for the Northern District of Mississippi found Kiffin’s sharing of the motivational message qualified as fair use under copyright law, ruling that posting an inspirational quote on social media is the kind of contribution to public discourse that copyright law should be “very hesitant to find unlawful,” particularly where, as in this case, there was no evidence of actual economic harm to the copyright holder (Bell v. Kiffin, No. 3:24-cv-00231-MPM-RP (N.D. Miss. Dec. 16, 2024)).

The lawsuit centered on Kiffin’s March 2022 tweet of the “WIN passage” from Dr. Keith Bell’s 1982 book “Winning Isn't Normal.” The passage discusses how winning requires extraordinary actions and dedication beyond the norm. Bell, who has filed numerous similar lawsuits against schools and organizations for sharing the passage on social media, claimed Kiffin’s tweet to his hundreds of thousands of followers violated his copyright.

In seeking dismissal, Kiffin argued that his tweet was protected under the fair use doctrine. Kiffin also raised a qualified immunity defense, noting that the Fifth Circuit uniquely recognizes this protection for state employees in copyright cases. The coach’s attorneys emphasized that Bell could show no actual economic harm from the tweet and highlighted the broader public interest in allowing social media users to share inspirational messages without fear of litigation.

The court granted Kiffin’s motion to dismiss, finding the coach’s use of the passage was protected under copyright law's fair use doctrine. The court’s order highlighted that the Fifth Circuit Court of Appeals had previously ruled against Bell in a nearly identical case involving a school district's social media post of the same passage.

Key Fifth Circuit precedent shaped ruling. The dismissal largely relied on the Fifth Circuit’s February 2022 decision in Bell v. Eagle Mountain Saginaw Independent School District, 27 F.4th 313 (5th Cir. 2022), where the court of appeals rejected nearly identical claims by Bell over a high school’s social media post of the same passage. In that case, the Fifth Circuit found fair use protected the school’s tweet because it was clearly educational rather than commercial, meant to inspire student athletes, and caused no actual economic harm to Bell’s business. The Fifth Circuit also upheld attorney fees against Bell, criticizing his long history of suing public institutions and nonprofit organizations over de minimis uses of his work and characterizing him as a serial litigant who makes exorbitant demands for damages in hopes of extracting disproportionate settlements. The district court noted this precedent was particularly relevant because Kiffin’s tweet came after the Fifth Circuit’s ruling, making it difficult to assign bad faith to sharing content that an appeals court had already deemed fair use.

Pattern of litigation. The court devoted significant attention to Bell’s history of copyright litigation, characterizing him as a “copyright troll” who filed over 25 lawsuits between 2006 and 2017, mostly targeting public schools and nonprofits that shared his passage on social media. The court noted that Bell’s strategy typically involves targeting organizations that share his “Winning Isn’t Normal” passage, then seeking settlements through what the court termed “shakedown lawsuits.” Multiple courts have described this as a “business model of litigation,” with Bell being characterized as “a serial litigant who makes exorbitant demands for damages in hopes of extracting disproportionate settlements.” The decision marks the latest defeat for Bell, who has previously been ordered to pay attorney fees in similar cases, with courts consistently criticizing his practice of pursuing litigation over minimal uses of his work.

The court was particularly critical of Bell’s claim on his website that his WIN passage is “likely the most read & widely used literary work in history,” writing that such an “extraordinary assertion, with which Shakespeare, Tolstoy and Faulkner might take issue, frankly causes this court to wonder whether it is dealing with a litigant whose feet are firmly planted on the ground.”

Fair use. In analyzing the fair use factors, the court found that both the first factor (purpose and character of use) and the crucial fourth factor (effect on potential market value) favored Kiffin. The court rejected Bell’s argument that Kiffin’s tweet harmed a potential market for licensing the passage to motivational speakers, finding this claim “speculative in the extreme.”

The court emphasized that Kiffin had posted what was clearly a photocopy of the passage, indicating he was sharing someone else’s words rather than presenting them as his own. The court viewed this as “the sort of contribution to the exchange of ideas which copyright law should be very hesitant to find unlawful.”

The court also noted that while it would have been preferable for Kiffin to credit Bell as the author, this omission did not override fair use protection. The court found that sharing inspirational quotes on social media represents an “appropriate, or even laudable” use, even if the poster cannot remember the original author. This was particularly true given that the WIN passage was already freely available on Bell’s own website.

Strategic shifts in arguments. The ruling criticized Bell’s litigation tactics, particularly how his arguments evolved during the case. Initially, Bell claimed Kiffin tweeted the passage as part of his official duties to recruit players and win games for Ole Miss. However, after Kiffin raised a qualified immunity defense (available to state employees), Bell changed course and argued the tweet was made in Kiffin’s personal capacity. The court found these shifting positions particularly troubling, noting that “the facts of the case should be the facts, regardless of what the law says.” The court viewed these “arguments of convenience” as especially damaging given Bell’s already questionable litigation history and his inability to demonstrate any actual financial harm from Kiffin’s tweet.

The Case is No. 3:24-cv-00231-MPM-RP.

Judge: Mills, M.

Attorneys: John R. Mccarroll (Burch Porter & Johnson PLLC) for Dr. Keith Bell. J. Cal Mayo (Mayo Mallette PLLC) for Lane Kiffin.

Cases: Copyright MississippiNews GCNNews