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:


