A motivational passage from Keith Bell’s book Winning Isn’t Normal sparks a legal battle after Ole Miss coach Lane Kiffin shares it on Twitter. Scott Hervey and Tara Sattler dive into the lawsuit, exploring how the Fifth Circuit’s ruling raises important questions about fair use, copyright enforcement, and Bell’s “serial litigant” status.

Watch this episode on the Weintraub YouTube channel.

Show Notes:

Scott:
In 2021, we reported on the copyright lawsuit filed by inspirational book author, Keith Bell, against the defensive back coach for the Miami Dolphins, Jerold Alexander. This was based on the coach’s inclusion of a passage from Bell’s 1982 book, Winning Isn’t Normal, in a social media post, and a federal court’s refusal to dismiss Bell’s lawsuit based on Alexander’s arguments, including fair use. In that case, the Florida federal court judge said that consideration of the fair use defense on a motion to dismiss was not appropriate unless it’s clear, based on the complaint itself, that fair use is applicable. The party The purpose of that case later settled. However, Bell had a much different result in a lawsuit brought against the University of Mississippi football coach, Lane Kiffin.

I’m Scott Hervey, a partner with the law firm of Weintraub Tobin and I’m joined today by my partner, Tara Sattler.

We are going to take a look at this particular case and a related case in the Fifth Circuit to try to understand why this federal judge and the Fifth Circuit came to such a different conclusion than the judge in Florida based on essentially similar facts on this installment of the briefing.

Tara, welcome back to the briefing. I think this is going to be a real interesting discussion.

Tara:
It definitely is, and it’s really timely with the Super Bowl coming up here.

Scott:
It is timely with Super Bowl coming up, but it’s really appropriate that you and I are talking about that Giving all the coverage you and I have done on the Warhol case and the new analysis of fair use. Absolutely. Yeah. So let’s get into this case. Like Bell’s case against Alexander, Bell’s lawsuit against Lane Kiffin, the head football coach at the University of Mississippi, revolves around a passage from Bell’s book, Winning Isn’t Normal. And that passage is known as the win passage. This passage provides motivational advice, and Bell has separately copyrighted that passage. So Kiffin tweeted the passage, the same passage that Alexander had tweeted. However, here, Kiffin included no other commentary or elaborate on the passage while Alexander had.

Tara:
As we know from our previous coverage, this isn’t Bell’s first lawsuit over this passage. Bell has filed dozens of copyright lawsuits over similar social media uses of the wind passage. This became an issue in Bell’s lawsuit against the Eagle Mountain Saginaw Independent School district for a similar use. In that case, the Fifth Circuit declared Bell a serial litigant who makes exorbitant demands for damages in hopes of extracting disproportionate settlement.

Scott:
I want to talk about the Court’s criticism of Bell’s litigation strategies. But before we have that discussion, let’s talk about the Court’s treatment of Kiffin’s fair use argument. The Kiffin Court cited the Fifth Circuit’s decision in Bell versus Eagle Mountain, Saginaw, Independent School district, which dismissed a nearly, on a motion to dismiss, a 12: 06 So not a summary judgment motion, but a motion to dismiss just based on a complaint itself and the defense is advanced by the defendant. They dismissed a nearly identical claim on fair use grounds. So Let’s remember that this case is a post-Warhol Fair use case.

Tara:
Right. The Court’s analysis closely followed the framework established in Eagle Mountain. It applied the four statutory fair use factors codified in the Copyright Act. One, the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Two, the nature of the copyrighted work. Three, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and four, the effect of the use on the potential market or value of the copyrighted in the war.

Scott:
So interestingly, both the Fifth Circuit in the Eagle Mountain case and this court, the Kiffin Court, make no mention of the Supreme Court’s analysis in Warhol, which requires an analysis of whether the purpose of the secondary use is different enough to justify copying. Let’s look at what the court did say in looking at those four fair use factors.

Tara:
As mentioned, the court’s analysis closely followed the framework established in Eagle Mountain. First, regarding the purpose and character of the use, the court found Kiffin’s use to be non-commercial and intended to motivate and inspire, a purpose often protected under fair use. Next, to the nature of the copyrighted work. The wind passage was deemed creative, favoring Bell slightly, though the court noted this is generally the least significant factor. Third, the amount and substantiality of the portion used. While Kiffin tweeted the entire win passage, the court here determined this factor was neutral because the passage was already widely accessible online. Finally, with respect to the fourth factor, effect on the market, this was the decisive factor. The court here found no evidence that Kiffin’s tweet harmed the market for Bell’s book or related merchandise. Bell’s claims of potential licensing revenue were speculative at best.

Scott:
I have issues with the court’s analysis, and we’re going to get into that in a bit. I think it’s also important to point out, and it’s clear from the Fifth Circuit’s opinion that Bell’s litigation history just highly influenced the court’s decision. The court was critical of Bell’s history of targeting what the court referred to as minor and often harmless uses of the win passage, despite the fact that the uses were not authorized by win. Sorry, not authorized by Bell, calling Bell a serial litigant and comparing his behavior to that of a copyright troll. This bad faith history, as the court calls it, undercut Bell’s argument especially regarding the fair use analysis.

Tara:
That’s right. And Scott, you mentioned the issues that you have. So I have some, too. Let’s talk about them.

Scott:
Yeah. So let’s start with the court’s analysis of the first factor. The court said that anyone reading Kiffin’s tweet would assume that the post was Kiffin simply saying in effect, quote, Somebody said this, and I thought it was worth sharing. The The Court said that this is the contribution to the exchange of ideas which the copyright law should be very hesitant to find unlawful, particularly when the quote in question is of such a harmless and non-commercial nature as the wind passage. We’ve covered a number of copyright cases that stem from the post of a photo that a person didn’t take. I mean, think of the numerous celebrity photo cases that we’ve covered. I don’t ever recall any other court applying a similar analysis. Could you imagine the argument? Some photographer took this photo of me and I thought it was worth sharing. I just don’t agree with the court’s analysis here.

Tara:
That’s true. I agree with We have never seen this, and I can’t imagine that this type of an argument would really go over very well in any other case or any other type of situation.

Scott:
The court noted that Kiffin’s use was intended for motivational and inspirational purposes. Kiffin shared this post for the same reason that all the other coaches and sports organizations have shared this passage, motivation and inspiration. Now, Bell is an internationally recognized expert in sports psychology and performance enhancement. The purpose behind his book and its content is to motivate and inspire. Now, while Kippen’s use may have been non-commercial, the purpose was the exact same purpose as Bell’s purpose for publishing his book.

Tara:
I agree with you, Scott. For all the analysis that we’ve done in this post-war hall world, the purpose typically carries quite a bit of weight. This is a very interesting position that the court took here, in my opinion.

Scott:
Right. And the court never asked the Warhol question whether the purpose of the secondary use is different enough to justify a copying. In both Kiffin and Eagle Mountain, they just reproduced the passage, the passage that is separately protected by copyright without any additional commentary or anything else. I don’t know how that use could be different enough to justify the copying done by Kiffin or the school district.

Tara:
Yeah, I agree with you, Scott. Let’s talk about the third factor now, the amount and substantiality of the work used. Bell does hold a separate copyright for the win passage. And in both the Eagle Mountain case and in the Kiffin case, the defendants use the entire work.

Scott:
That’s right. Also, the Court’s treatment of Bell having this passage on his website saying that, Oh, it’s readily available and online, and that makes this factor neutral. I’ve never seen that before. I mean, think of all the photo sharing cases that we’ve covered. Usually, those photos are available online because that’s where the celebrities get them from. I don’t agree with the court’s analysis here.

Tara:
Yeah, and typically making something widely available really does not have an impact on its protectability.

Scott:
Right.

Tara:
Usually, when we see In the case involving the entire work, the third factor generally does not favor fair use and generally isn’t neutral.

Scott:
When they use the whole work, it generally favors a finding of infringement. It favors the complainant. Bell wrote an extremely popular passage. It has to be extremely popular given the amount of sharing that is happening with this passage. It’s one that coaches and players apparently find extremely valuable, insightful, and motivational. Unfortunately, it seems that their exuberance has resulted in the unpermitted sharing of this passage. Bell, the copyright owner, has elected to actively challenge those uses. The court said that this likens him to a copyright troll. But trolls, whether they’re a copyright troll or a patent troll, they generally attempt to enforce rights beyond the rights actual value. And value, I think, is… I don’t know. It’s hard to substantiate what value is. Also, trolls generally do not manufacture products or supply services based on the patents in question. But Bell is an author and a speaker, and he actively He relatively merchandises the passage in his books, and he’s still selling his books. He is exercising the rights he has under the Copyright Act. The fact that he has to play whack-a-mole with other coaches in schools that seemingly don’t respect copyright, in my opinion, it doesn’t make him a troll, and it doesn’t strip him of his rights to protect and enforce his copyrights.

Tara:
I agree with you, Scott. It seems pretty strong to come at someone, especially in this particular fact pattern, where the win passage itself is separately registered for copyright protection, and the whole passage has been used. I do think this just seems like a very extreme example. So, Scott, do you think that the Fifth Circuit’s decision in Bell versus Egle Mountain is the beginning of a new rip in the fair use analysis in our post-warhol world?

Scott:
Well, I think it already has had an effect. Remember, the Kiffin case was based on the Fifth Circuit decision in Bell versus Eagle Mountain. So I think this decision has already caused issues within the Fifth Circuit and the district courts in that circuit. So think about this. In that case, in the Eagle Mountain case, the school district did not argue that its use was transformative, and the court did not find that its use was transformative. Same in Kiffin. But the court said, there are other factors that are of equal importance. Could you imagine a fair use analysis where the use is admittedly non-transformative, but it’s still found to be fair use. One does not immediately come to mind for me, and if that has happened in the past, I assume that it is a rare, rare thing.

Tara:
I agree with you, Scott.

Scott:
It’s obvious to me that the court didn’t want to find for Bell, even though he clearly showed infringement. So the court twists itself into this knot to find fair use. I think instead, the court should have found copyright infringement as a matter of law. If it didn’t want to find in favor of well, then it could have awarded nominal damages for statutory damages. I think this case and this Fifth Circuit’s decision in Eagle Mountain, it doesn’t comport to Warhol. I think that the district Court and the Fifth Circuit in Eagle Mountain were motivated by factors other than fair use. I think the Fifth Circuit case makes for bad precedent.

Tara:
Yeah, I think that’s right. I think the Fifth Circuit is really going to have to untangle itself from this. I’m sure we will be talking more about fair use in the Fifth Circuit in the weeks and months to come. I also think the Bell should probably take a look at how he wants to monetize his intellectual property moving forward, and hopefully, he can come up with some more creative and maybe symbiotic ways to get some money off of his intellectual property rather than trying to go to court every time since the courts don’t seem to appreciate that.

Scott:
If sharing Having an asset on social media constitutes copyright infringement. The unpermitted sharing of a copyrighted work, whether that work is a whole photograph or a whole passage from a book, in this case, then what’s Bell to do? Could you imagine if a court were to say, Oh, I I’m sorry, Paramount Pictures, but your motion picture is widely available, or I’m sorry, Universal Music Group, this track, this song is widely available on Spotify and on Pandora, even though you made it available there. We’re not going to allow you to enforce the peer-to-peer infringement of your song. Where does the fact that the rampant and, I don’t know, untethered infringement of a particular IP asset, how does that diminish the copyright holder’s rights to try to corral those acts of infringement? Basically, the court was saying, almost like, because other people, coaches, schools, what have you, are using this passage frequently to inspire and motivate and not getting permission, it’s okay. Because the masses are doing it, we’re going to find it to be okay, and we’re going to find it to be fair use. That doesn’t work. That’s not what the Copyright Act protects. That’s not how the fair use works.

Scott:
I think this particular decision in the Fifth Circuit is a risk for all copyright asset holders, whether they be somebody like Bell, whether they be a photographer, whether they be a music company or a motion picture or a television company. I think those asset holders need to be concerned about cases in the Fifth Circuit because apparently in the Fifth Circuit, you don’t need to comport with the Supreme Court’s analysis in Warhol, and the requirements to establish fair use are pretty light.

Tara:
Even though this is pretty harsh treatment of Bell and Bell’s work here, I think that hopefully schools and coaches and athletic departments will take note of Bell’s litigious nature and respect his intellectual property and stop doing this behavior that continues to cause Bell to go to court to enforce his rights.

Scott:
Right. It seemed like the court was motivated by the fact that Bell wouldn’t agree to settle for an amount that the court found to be reasonable. Okay. If the court believes that Bell is not reasonable in his settlement decisions, don’t find fair use, find technical infringement, but award him the nominal amounts under the Copyright Act for statutory damages, and don’t award him attorney’s fees. And all of All of a sudden, the motivation to pursue claims in court become a lot less because you’re not going to get more than the minimal amount awardable under the Copyright Absolutely. Yeah. Well, we’ll see what happens with this case. I’m interested to see if any other pundits who talk about these subjects like we do take issue with this decision and the Fifth Circuit’s decision. We’ll see. Thanks for joining me today, Tara.

Tara:
Thanks for having me, Scott.

Scott:
That’s all for today’s episode of The Briefing. Thanks to Tara for joining me today. Thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

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