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Copyright

Motivational Speaker Loses Copyright Lawsuit Against High School

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

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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.

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  1. I guess winning *isn't* normal...for him.

    1. By citing him, they publicized him. He owes the high school for advertising.

  2. If he keeps getting sanctioned for suing people for copyright infringement, he may end up in a van down by the river.

    1. He thinks he's Bill Shakespeare.

    2. You got there first! That was what I was going to post. RIP, the great Chris Farley.

  3. This brings to mind Linda Ellis of "The Dash".

  4. Gregg Costa for Supreme Court! Unfortunately he is incorrect race or gender.

  5. Not clear to me this is a fair use. Their use was not transformative, in fact they used it for the very purpose he publishes books, to motivate.
    It is a de minimis use. So the result seems correct.

    1. Did the school give a full citation to the source?
      Whether Bell is a serial litigant seems irrelevant to misuse without the author's permission especially if no citation is given

      1. I'm unaware of any reason that giving credit (or failing to give credit) would make any difference in the legal analysis.

        In the academic circles it is the normal thing to do and could even get someone charged with plagiarism and disciplined.

      2. This is one of the things people confuse between plagiarism and copyright infringement. Citation gets you out of the first, but not the second.

        If I make copies of Harry Potter novels, with full citation to their author, J.K. Rowling, and sell them on the Interent, I have not committed plagiarism, but have definitely committed copyright infringement. And you can bet her publisher will come after me.

        1. BL,
          You missed my point (which I failed to make clearly).
          Absent even credit being given to alert the reader that this page was not original speech, copy 1 page out of only 72 essentially as a motivational message hardly seems like fair use and refusing even to identify the page as taken from another would seem to me to support the claim of infringement. That is why I said "especially."
          The school used the speech not for any of the usual reasons given to support a claim of "fair use."
          The school used the speech for the same professional reason as the author.

      3. The fact he's a serial litigant was a factor in determining whether sanctions were appropriate, not whether this was fair use.

    2. 'Transformative' is only one of the four factors in a Fair Use analysis. He and the school are neutral on the 'nature' test. As you say, he loses on the 'amount and substantiality' factor but he also failed to present any evidence that he would do anything but lose on the 'market impact' factor. Weighing all four factors, yes it's Fair Use and yes the result was correct.

  6. More disaffected nonsense from the Fifth Circuit.

    Two hundred and thirty words (approximating the length of the Gettysburg Address, I would venture) is not "de minimis." Even hayseeds who disdain education, credentials, creativity, modernity, and standard English should recognize that.

    Carry on, clingers.

    1. Hey, asshole troll: two of the three judges were appointed by Obama and Carter.

  7. This is like a guy who publishes a cookbook, then sues someone for using the recipes.

    1. Interestingly, recipes can't be copyrighted, so you can quite literally copy the recipe parts of a cookbook into your own (careful with creative descriptions of what you're doing, but the ingredients and process are fair game).

  8. It's kind of funny to me that the Fifth Circuit took care to publish the entire WIN Passage in it's decision. Right at the top, even 🙂

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