The Volokh Conspiracy

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Motivational Speaker Loses Copyright Lawsuit Against High School

And has to pay $10K in attorney fees to the high school as well.


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. School Dist.:

The softball team and flag corps at a public high school outside 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 Isn't Normal.

We do not know if the tweets motivated the students to perform at a higher level. We do know that the tweets resulted in Bell's suing the school district for copyright infringement. We must decide if the tweets were a fair use of the copyright that bars this suit.

Apparently the author, Dr. Keith Bell, had filed "over 25 copyright lawsuits" "[b]etween 2006 and 2017" over "unauthorized uses of [this] passage," mostly against "public schools or nonprofits, which published the WIN Passage on social media." But this time he lost:

[T]he school's tweets were fair use. This conclusion comports with the "ultimate test of fair use": whether copyright law's goal of promoting creativity would be better served by allowing the use than preventing it. The complaint does not suggest that the school's use had any cognizable, adverse impact on Bell. What it does make clear is that the softball team and flag corps used Bell's work in good faith, for no commercial gain, and for the laudable purpose of motivating students to succeed. We cannot see how the creative arts would be better served by permitting Bell's suit to proceed. Because a successful fair-use defense "appears on the face of the complaint," and Bell can "prove no 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 fees ($10,266.37) to the defendants:

Bell is not the typical copyright plaintiff seeking "a fair return for [his] creative labor." He has a long history of suing public institutions and nonprofit organizations over de minimis uses of his work. {See e.g., Bell v. Worthington City Sch. Dist., 2020 WL 2905803, at *3 (S.D. Ohio June 2, 2020) (tweet by a high-school basketball coach); Bell v. Llano Indep. Sch. Dist., 2020 WL 5370591, at *1 (W.D. Tex. Feb. 13, 2020) (same); Bell v. Oakland Cmty. Pools Project, Inc., 2020 WL 4458890, at *1 (N.D. Cal. May 4, 2020) (tweet by a non-profit aquatics center for disadvantaged youth); Bell v. Granite Sch. Dist., No. 2:19-CV-00209-DBB (D. Utah 2019) (reading the WIN Passage at a public school's sports awards banquet).

Taking these cases into account, the district court reasonably concluded that Bell is a serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements. This case is another in the line. The school shared a single page of Bell's work with fewer than 1,000 online followers and immediately removed the posts upon request. Bell was unable to identify any actual financial injury associated with that use but brought suit anyway. Attorney's fees were thus an appropriate deterrent, both with respect to Bell and other copyright holders who might consider a similar business model of litigation.