Court Rejects Copyright Lawsuit Over Ole Miss Coach's Use of Motivational Speaker's "Winning Isn't Normal" Passage

From Bell v. Kiffin, decided two weeks ago by Judge Michael Mills (N.D. Miss.):

With any beneficial law, … there will always be some litigants who seek to abuse it, and this court believes that there is good reason to suspect that this case involves such a litigant. In so stating, this court notes that this case bears an extraordinary similarity to another copyright action dismissed by the Fifth Circuit in its February 2022 decision in Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. (5th Cir. 2022). [For more on that Fifth Circuit decision cited in the case, see this 2022 post. -EV] In that action, the Fifth Circuit dismissed an action by the very same plaintiff in this case, based on an almost identical quotation on social media of an inspirational passage from his book Winning Isn't Normal. {[I]t is impossible for this court to improve upon holdings which are, by their very nature, binding precedent in this circuit.}

In Eagle Mountain, the Fifth Circuit described plaintiff's book as follows:

In 1982, Bell published Winning Isn't Normal, a 72-page book that provides strategies for success in athletics. Bell continues to market and sell Winning Isn't Normal through online retailers and his personal website, where he also offers merchandise, including t-shirts and posters that display the passage that was quoted in the tweets.

That passage, which Bell calls the WIN passage, is separately copyrighted. Bell offers licenses for its use. The passage reads:

Winning isn't normal. That doesn't mean there's anything wrong with winning. It just isn't the norm. It is highly unusual.

Every competition only has one winner. No matter how many people are entered, only one person or one team wins each event.

Winning is unusual. And as such, it requires unusual action.

In order to win, you must do extraordinary things. You can't just be one of the crowd. The crowd doesn't win. You have to be willing to stand out and act differently.

Your actions need to reflect unusual values and priorities. You have to value success more than others do. You have to want it more. Now take note! Wanting it more is a decision you make and act upon—not some inherent quality or burning inner drive or inspiration! And you have to make that value a priority.

You can't train like everyone else. You have to train more and train better.

You can't talk like everyone else. You can't think like everyone else. You can't be too willing to join the crowd, to do what is expected, to act in a socially accepted manner, to do what's "in." You need to be willing to stand out in the crowd and consistently take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness … BECAUSE WINNING ISN'T NORMAL!

This case arises from Kiffin's March 20, 2022 tweet of the exact same passage quoted above ….

This court observes that, after quoting this same passage in Eagle Mountain, the Fifth Circuit noted plaintiff's predilection for suing public schools and other non-profit entities, in a manner which many would regard as considerably less than inspirational. Specifically, the Fifth Circuit wrote that:

Bell has another revenue stream. He zealously seeks out and litigates unauthorized uses of the WIN Passage. Between 2006 and 2017, Bell filed over 25 copyright lawsuits. Most of the defendants were public schools or nonprofits, which published the WIN passage on social media.

In affirming the district court's award of attorneys' fees against Bell, the Fifth Circuit had very harsh words for his litigation practices, writing that:

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. 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.

While there was clearly a strong air of disapproval in the Fifth Circuit's description of plaintiff's serial litigation practices, that court nevertheless gave his copyright arguments thorough consideration before ultimately concluding that the fair use doctrine protected the reposting on social media of the same "Winning Isn't Normal" passage which is at issue here….

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.

This court notes that plaintiff appears to have an exceedingly high opinion of the literary value of his WIN passage, proclaiming on his website that "[t]he separately copyrighted Winning Isn't Normal passage ("WIN") is likely the most read & widely used literary work in history!" This 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. While this court might ordinarily suspect that such an assertion was made in jest, there is nothing funny about the dozens of lawsuits which plaintiff has filed against numerous entities which, as the Fifth Circuit noted in Eagle Mountain, were mostly "public schools or nonprofits." Moreover, while the defendant in this case, a wealthy and famous football coach, is considerably less of an "underdog" figure than many of the other entities that plaintiff has sued, Kiffin does have the advantage of being a defendant living in this circuit who made the allegedly offending Twitter post after the Fifth Circuit had issued its opinion in Eagle Mountain.

This court notes that, following the Fifth Circuit's decision in Eagle Mountain, plaintiff appears to have simply shrugged his shoulders, loaded his covered wagon and taken his traveling litigation show to the next courthouse. In December 2022, plaintiff's show made a stop in Wisconsin where, as in Eagle Mountain, a district court found his litigation tactics to be sufficiently abusive to award attorneys' fees against him….. Having now seen plaintiff's traveling litigation show make a stop in its courthouse, this court is not required to ignore the facts that 1) reviews of that show are filtering in from surrounding communities, and 2) those reviews are not at all positive….

[P]reventing the federal courts from being used as a forum for abusive shakedown lawsuits is essential for the integrity of the federal judiciary as a whole and for public confidence in it. In this vein, this court notes that the Fifth Circuit has held that "[a] district court may bar a vexatious litigant from filing future civil rights complaints unless she seeks the prior approval of a district or magistrate judge." This court is not suggesting that plaintiff has reached this point with his WIN passage lawsuits (yet), but the existence of this authority makes it clear that federal courts are not required to ignore prior findings of abusive litigation practices by other judges in evaluating the merits of a particular claim….

In arguing that Kiffin acted in bad faith, plaintiff emphasizes his allegation that, in 2016, Kiffin took down a tweet of the WIN Passage after he sent him a cease-and-desist letter. Accepting this allegation as true, plaintiff's problem with seeking to assign bad faith to Kiffin in this regard is that the Fifth Circuit issued its opinion in Eagle Mountain shortly before defendant tweeted the WIN passage a second time in 2022. That being the case, this court believes that a reasonable person in Kiffin's position who cared to research the issue would have concluded that he had every legal right to re-tweet the WIN Passage, at least in this circuit. This makes it very difficult for any federal court to assign bad faith to him in this regard, since that would amount to that court saying that an individual acted in bad faith for doing something which the relevant federal appellate court had already said he had a right to do….

In addressing this third [fair use] factor {"the amount and substantiality of the portion used in relation to the copyrighted work as a whole"}, plaintiff has chosen to play it coy in his briefing, emphasizing that, while the Fifth Circuit noted that the complaint in Eagle Mountain specifically alleged that the WIN Passage was freely available online, his complaint in this case contains no such allegation. Specifically, plaintiff writes in his brief that:

Kiffin nonetheless argues [the third] factor is "neutral" because Dr. Bell made the WIN Passage "freely accessible" through authorized images he posted online. The FAC, however, never alleges that, at the time Kiffin copied the WIN Passage in 2022, freely accessible, authorized images of the WIN Passage were available online. Kiffin asks the Court to assume that the factual allegation in Eagle Mountain Saginaw that the WIN Passage was freely available at the time of the school district's posting in "December 2017[,]" remained true when Kiffin copied the WIN Passage on March 20, 2022. When ruling on a motion to dismiss, a court cannot make that factual assumption that falls outside the four corners of the pleadings.

This is the sort of too-clever-by-half argument which this court dislikes under any circumstances, but which it finds particularly distasteful within the context of plaintiff's ongoing abuse of the copyright litigation process. In so stating, this court takes judicial notice of the fact that anyone who visits plaintiff's website today can see the entire WIN Passage for free, at several different links on that site. See, e.g. https://winningisntnormal.com/product/w-i-n-12x18-poster-biker/. Moreover, plaintiff does not dispute that this was also the case when Eagle Mountain was decided. That being the case, it certainly stands to reason that Bell's website offered visitors free views of the WIN Passage at the time Kiffin made the tweet at issue in this case, and at no point in his briefing does plaintiff deny that this is the case. Plaintiff has instead chosen to take a coy "I'm not saying it is, but I'm not saying it isn't either" position on this issue, with which this court has little patience.

This court wishes to be clear that, based on plaintiff's prior litigation history, there is very good reason to suspect that this case is part of an ongoing scheme on his part to enrich himself by abusing the judicial process. This court is willing to give plaintiff an opportunity to persuade it otherwise, but he will not accomplish that with coy and disingenuous arguments.

Quite to the contrary, the manner in which plaintiff makes these arguments, combined with the manner in which his factual allegations appear to change based upon his evolving view of what will allow him to recover, simply leads this court to conclude that this case is not, in fact, any different from Eagle Mountain or Milwaukee and that a common thread of bad faith runs through them all….

Defendant's motion to dismiss this case will therefore be granted. Defendant has indicated that he may file a motion for attorneys' fees, and this court will therefore refrain from issuing the judgment in this case pending consideration of any such motion.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer. J. Cal Mayo, Jr., John Andrew Mauldin, and Paul Bowie Watkins, Jr. represent defendant Kiffin.