Motivational speaker loses copyright lawsuit against high school

From last week’s decision by Fifth Circuit Judge Gregg Costa (joined by Judges Carolyn Dineen King and Don Willett) in Bell v. Eagle Mountain Saginaw Indep. Dist.:

The softball team and flag corps at a public high school outside of Fort Worth used their Twitter accounts to post a motivational passage [230 words, or one page from a 72-page book -EV] from sports psychologist Keith Bell’s book, Winning is not normal.

We don’t know if the tweets motivated the students to perform at a higher level. We know the tweets led Bell to sue the school district for copyright infringement. We have to decide if the tweets were a fair use copyright law that prohibits this lawsuit.

Apparently the author, Dr. Keith Bell, had filed “over 25 copyright lawsuits””[b]between 2006 and 2017” on “unauthorized uses of [this] passage”, mainly against “public schools or non-profit associations, which published the WIN Passage on social networks”. But this time, he lost:

[T]The school tweets were fair use. This conclusion is consistent with the “ultimate test of fair use”: whether the goal of copyright law to promote creativity would be better served by permitting the use than by preventing it. The complaint does not suggest that the use of the school had any recognizable negative impact on Bell. What this clearly shows is that the softball team and flag corps used Bell’s work in good faith, without commercial gain, and with the laudable purpose of motivating students to succeed. We don’t see how the creative arts would be better served by allowing Bell to sue. Because a successful fair use defense “appears on the face of the complaint” and Bell cannot “prove any set of facts” that would overcome it, the district court properly dismissed the case.

And the Fifth Circuit upheld the District Court’s award of costs ($10,266.37) to the defendants:

Bell is not the typical copyright plaintiff seeking “a just return for [his] creative work.” He has a long history of lawsuits against public institutions and non-profit organizations for de minimis uses of his work. {See for example Bell v. Worthington City Sch. Dist.2020 WL 2905803, at *3 (SD Ohio Jun 2, 2020) (tweet by high school basketball coach); Bell v. Llano Indep. Sch. Dist.2020 WL 5370591, at *1 (WD Tex. February 13, 2020) (identical); Bell v. Oakland Cmty. Pools Project, Inc.2020 WL 4458890, at *1 (ND Cal. May 4, 2020) (tweet by non-profit aquatic center for disadvantaged youth); Bell v. Granite Sch. Dist.#2: 19-CV-00209-DBB (D. Utah 2019) (WIN passage read at public school athletic awards banquet).

Given these cases, the district court reasonably concluded that Bell is a serial litigant, making exorbitant damage claims in hopes of obtaining disproportionate settlements. This case is another in the line. The school shared a single page of Bell’s work with less than 1,000 online followers and immediately deleted the posts upon request. Bell was unable to identify any actual financial harm associated with this use, but sued anyway. The attorneys’ fees were therefore an appropriate deterrent, both to Bell and to other copyright owners who might be considering a similar business model of litigation.

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