Fifth Circuit affirms dismissal of copyright infringement case brought by sports psychology author against school district for tweets using passages from author’s book, finding tweets to be protected by fair use doctrine and upholding award of attorneys’ fees.
Plaintiff Keith Bell, sports psychologist and published author of the book Winning Isn’t Normal, sued the Eagle Mountain Saginaw Independent School District for copyright infringement. Bell’s claim stemmed from Chisholm Trail High School’s softball team and color guard tweeting a seven-paragraph passage from Bell’s 72-page book. The posts included language from Bell’s book, including “Winning isn’t normal” and “In order to win, you must do extraordinary things.” Though the posts credited Bell, they did not include a copyright watermark, nor did anyone at the school request Bell’s permission to post the passage. Bell discovered the posts via an online search soon after the school teams posted them, but he waited almost a year before he notified the school of the infringement, at which point the posts were taken down immediately. After settlement negotiations between the school district and Bell broke down, Bell filed suit. Anticipating that the issue would be whether the tweets were fair use, Bell included allegations in his complaint addressing each of the four fair use factors. The district court granted the motion and also awarded attorneys’ fees to defendant. Following Bell’s appeal, the Fifth Circuit affirmed.
The Fifth Circuit held the first factor (the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes) weighed in favor of the school district. When weighing this first factor, courts consider whether the copyright user stands to profit from the use of the copyrighted material, whether the user acted in good faith and whether the use is “transformative,” meaning it adds something new to the work. The court determined that the only possible motivation for the posts was to inspire students and there was no plausible profit to be derived by the school district from its posts. Moreover, the court found that the school district acted in good faith due to its crediting Bell and the immediate removal of the posts upon Bell’s notice. The court rejected Bell’s argument that the first factor weighed in his favor because the use was not transformative, noting that transformative use is not mandatory in order to satisfy the first factor and that in its absence, the other factors, such as good faith and lack of commercial benefit, are sufficient.
The court of appeals found the second factor, the nature of the copyrighted work, to weigh in favor of Bell, but it noted that it was a “meager victory.” The book, as a study of the psychological principles at play in athleticism, generally constituted nonfiction. Bell argued, however, that the particular passage used in the tweets was worded in such a way to be more than simply factual by articulating facts in a “motivational and expressive” way. Noting that “the passage largely consists of well-worn truisms,” the court concluded that at the motion-to-dismiss stage, it was constrained to construe the pleadings in plaintiff’s favor and that “Bell is entitled to the inference that the school chose the WIN Passage because it combines and condenses these principles in a particularly inspiring way.”
In reviewing the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the Fifth Circuit held that the posts did not weigh in favor of either party. Courts assess whether the amount copied is either a quantitatively or qualitatively significant part of the original, and even a relatively small amount of copying can capture the heart of a work. The court found that the passage quoted in the posts did capture the essence of the book in its entirety, as evidenced by merchandise bearing the passage sold by Bell. Because the passage was also publicly available and readily accessible without purchasing the book, the court would not weigh the third factor in favor of Bell.
Finally, the appellate court turned to what it considered the most important factor, the effect of the use upon the potential market for or value of the copyrighted work, finding it weighed heavily in favor of the school district. When evaluating this factor, courts consider actual market harm to a plaintiff in addition to whether widespread use of the work would result in a substantially adverse impact on the potential market. Bell’s complaint did not allege he lost any revenue as a result of the school’s posts. The court also found that the school’s posts were not a substantial portion of Bell’s book and therefore would not deter anyone from purchasing the book. In contrast, the court commented that the school’s posts could, in fact, be seen as promotional usage that would help Bell’s book sales. As a result, the Fifth Circuit determined the fourth factor weighed heavily in favor of the school district, and after tallying up all four factors, it upheld the lower court’s dismissal of Bell’s lawsuit.
The Fifth Circuit also upheld an award of attorneys’ fees to the school district. Because Bell had attempted to litigate many similar cases to the point where his lawsuits might be considered frivolous, the court found an award of attorneys’ fees to the school district was proper.
Summary prepared by David Grossman and Michael Segal