IP Law Daily, COPYRIGHT—N.D. Tex.: School's posting of book quote on Twitter for motivational purposes was fair use, (Mar 29, 2021)

By Linda Panszczyk, J.D.

The high school's Twitter accounts' use of the author's quote was educational rather than commercial because it clearly was intended to inspire high school softball athletes and color guard members.

In a case in which a book author sued a public school district for using a passage from his book on Twitter for sports motivational purposes without his permission, the author’s direct copyright infringement claim was dismissed on fair use grounds because the school had an educational rather than a commercial reason for using the quote; the athletic code and "playing to win" have been addressed numerous times before the school’s use of it; and no evidence existed of any harm to the author’s business, a federal district court in Texas has ruled. The court also granted summary judgment to the school district on all remaining claims, including contributory and vicarious infringement, and awarded attorney fees and costs to the school district due to the author’s "harassing, indeed unethical, litigation practices" in pursuing his copyright infringement claims (Bell v. Eagle Mountain-Saginaw Independent School District, March 26, 2021, Pittman, M.).

Plaintiff, Dr. Keith Bell (Bell), is a sports psychology and performance consultant who authored 10 books and over 80 articles on these subjects. One of these books is WINNING ISN’T NORMAL, a 72-page work that Bell wrote in 1982 and copyrighted. Bell creates, markets, and sells works derived from this book, including posters and t-shirts that display a particular passage known as the "WIN Passage." Bell views the WIN Passage as the heart of his work, registered the passage for copyright in 2017, and offers licenses to publish or otherwise use it. Bell also obtained a federally registered trademark for the phrase "WINNING ISN’T NORMAL," which he uses in connection with several goods and services, including his Winning Isn’t Normal series of books, of which WINNING ISN’T NORMAL is part.

Defendant, Eagle Mountain, Saginaw Independent School District (Eagle Mountain), is a public independent school district. Chisholm Trail High School (CTHS) is part of the Eagle Mountain school district. Both the CTHS Softball and Color Guard teams displayed the WIN Passage on their Twitter pages, without contacting Bell to request permission to do so. Bell discovered the allegedly infringing posts and contacted Eagle Mountain, claiming that the WIN Passage was not properly attributed to him. Eagle Mountain promptly removed both posts, informed Bell that the incident would be a "teachable moment," and that Eagle Mountain was developing training to prevent future incidence. The parties discussed settlement multiple times between 2018 to 2020 with no success. Bell filed suit, alleging direct, vicarious, and contributory copyright infringement alongside a request for declaratory judgment, though Bell expressly abandoned his declaratory judgment claim, so the court did not address it.

Fair use. There was no dispute that Bell owns a copyright or that he attached the allegedly infringing posts to his complaint, according to the court, which stressed that, instead, the parties’ briefing focused on whether the posts constituted fair use. The court then examined the four factors that determine fair use and ruled that Eagle Mountain’s posts constituted fair use.

Under the purpose and character factor, courts consider the culpability of a defendant’s conduct in acquiring or using a work, the extent to which such use is transformative, and whether such use is for commercial or non-commercial purposes. Here, Bell alleged no facts suggesting that the allegedly infringing posts were made in bad faith or for commercial purposes. Indeed, nothing suggested that Eagle Mountain, a taxpayer funded school district, stood to gain any commercial benefit by sharing these posts whatsoever. Rather, the "allegedly infringing posts" were clearly meant to inspire young, high school softball athletes and color guard members. Further, the posts were mere photographs of the WIN Passage—nothing about them was remotely transformative. As such, the purpose and character factor weighed in favor of finding fair use.

Under the nature of the copyrighted work factor, courts typically look to two considerations of the work when analyzing the second factor: (1) whether the work is more creative or factual in nature and (2) whether the work is published or unpublished. Bell published his work in 1982 and the allegedly infringed portion is undeniably factual. It is safe to say that since the beginning of recorded time, the court noted, it has been axiomatic that athletes must train, that competitions only have one overall winner, and that successful athletes must push harder and further than average to win. Citing football coaches Vince Lombardi and Paul (Bear Bryant), as well as General Douglas MacArthur and Saint Jerome among others, the court addressed the athletic code and playing to win. The court stressed that this was a devastating blow to Bell, and it found that this factor weighed heavily in favor of finding fair use.

In addressing the third factor, the amount and substantiality of copyrighted work, the court looked to the quantitative amount of the copyrighted work used as well as the qualitative" importance of the portion copied. That said, courts recognize that creative works are closer to the core of intended copyright protection than are works that are predominantly factual, such as news or non-fiction.

Under this third factor, neither Eagle Mountain nor Bell disputed that the sole passage posted constituted any quantitatively meaningful amount of the copyrighted work. In fact, the posts showed a single page of 72-page book. Though Bell claims that the WIN passage constituted the "heart" of his non-fiction work, he provided nothing beyond that plain, bare assertion. Given the minimal quantitative and questionably qualitative nature of the posting, the court found that the third factor was, at best, neutral.

The fourth fair use factor, the effect of the use on the potential market, requires courts to consider the effect of the use upon the potential market for or value of the copyrighted work. In this instance, Bell pleaded no facts about any actual lost book sales or other sales after the 2017 tweets or otherwise allege that the tweets in question impacted his actual or potential sales of books. Instead, he merely alleged, without support, that sales "could fall." Over three years have passed since the tweets were posted, yet Bell alleged no facts whatsoever concerning any impact (much less substantially adverse impact) the tweets had on his book sales during the eleven months that the posts stayed up. Indeed, the court noted, it begged all credulity to even suggest that two taxpayer funded public high school Twitter pages with less than 1,000 followers between them sharing a single page of Bell’s published, non-fiction work in a positive manner could somehow have a "substantially adverse impact" on Bell’s book market or other sales. If anything, the court noted, it could be credibly argued that the school’s posting of these inspiring passages might, in fact, boost Bell’s sales among young athletes, the very audience for his books. The court found that the fourth factor favored fair use.

Overall, factors one, two, and four favored finding fair use while factor three was neutral. As such, the court found that the posts in question constituted fair use and it dismissed Bell’s claim for direct copyright infringement with prejudice. Further, contributory and vicarious infringement do not exist absent direct infringement by another. According to the court, having found fair use and dismissing Bell’s direct infringement claim, his contributory and vicarious infringement claims necessarily failed as well. Bell’s claims for contributory and vicarious infringement were dismissed with prejudice.

Attorney fees. Given that Eagle Mountain was the lawsuit's prevailing party, the court looked to the Fogerty v. Fantasy, Inc. factors to determine whether to award discretionary attorney fees. Under the frivolousness factor, a complaint is frivolous if it lacks an arguable basis either in law or in fact. At a rote, recitation-of-the-elements level, the court indicated that Bell’s claims barely cleared the edge of this very low hurdle inasmuch as he held a copyright and Eagle Mountain did post a picture of copyrighted material without his consent. Thus, although arguably morally questionable, his complaint was not legally frivolous.

Looking at the objective unreasonableness factor, the court noted that, in his complaint, Bell demanded either $700 to $30,000 or $200 to $150,000, along with costs and attorney fees. The court pointed out that Bell's exorbitant demand was in response to a pair of public high school Twitter accounts—with less than 1,000 followers between them—who shared a single page of Bell’s published, non-fiction work in a manner meant to inspire young student athletes and immediately removed the posts upon request and engaged in settlement negotiations for over two years before suit.

The court struggled to imagine how such a de minimis "injury" would be worth anywhere near even the lowest the amounts demanded, saying that, in fact, it is easy to imagine that the posts actually boosted the WIN Passage’s profile and inspired viewers to purchase the work. Engaging a publicly funded school district in costly litigation over such de minimis acts for these disproportionate damages "smacks of harassing, indeed unethical, litigation practices." Given the mix of factual unreasonableness with legal non-frivolousness, according to the court, this factor was at best, neutral.

Looking toward the motivation factor, the court acknowledged that the existence of bad faith or an improper motive in bringing or pursuing an action weighs in favor of an award of fees to a prevailing party. Review of the plethora of lawsuits Bell has filed throughout the U.S., said the court, revealed that he was in the business of litigation, not protecting his copyrights or stimulating artistic creativity for the general public good.

Noting that another federal district court described Bell as "a professional litigant" who, at the time of that order, filed over 26 copyright infringement lawsuits since 2006 and obtained settlements from at least 90 different alleged infringers, almost exclusively public school districts and non-profits, all related to the WIN passage, the court stressed, it was "left to the unavoidable conclusion in this case that Bell continues to insist on extorting public schools by abusing the Copyright Act in precisely the way he did" to the non-profits and public schools in numerous other cases. " Here, as in many of Bell’s other cases, the issue was not that he sought to enforce his copyright but that he sought a disproportionate amount to settle his claims in a repulsively pungent pattern that repeats tens, if not hundreds, of times over." As a result, the court found that this factor weighed in favor of fee shifting.

When evaluating the compensation and deterrence factor in the context of a successful defendant, courts must be careful not to discourage starving artists from defending copyrights in original works due to the threat of attorney fees. In this instance, the court's finding that "Bell’s motivation stems from a desire to extract disproportionate settlements rules out the possibility that he is a 'starving artist' whose legitimate enforcement efforts risk being deterred by an award of fees." The court further noted that "this applies doubly so in this case, where Bell seeks to drain the coffers of taxpayer funded public school systems that already struggle to stay afloat."

For these reasons, the court awarded Eagle Mountain costs and attorney fees as to Bell’s copyright infringement claims, which, the court said, "shall be extracted solely from Bell, not his counsel," noting that "hopefully, this will serve as a "teaching moment" for Bell.

This case is No. 4:20-cv-01157-P.

Attorneys: Warren V. Norred (Norred Law, PLLC) for Dr. Keith Bell. Kelley Lynn Kalchthaler (Walsh Anderson Brown Gallegos & Green PC) for Eagle Mountain-Saginaw Independent School District.

Companies: Eagle Mountain-Saginaw Independent School District

Cases: Copyright TechnologyInternet GCNNews TexasNews