Fair Use Protects High School’s Use of Inspirational Meme–Bell v. Eagle Mountain School District

Bell published a short book in 1982. It contained a passage that has become a meme in the sports community. Bell has separately registered a copyright in the passage. Bell has filed at least 25 copyright lawsuits.

This one has gone poorly for him. A high school’s softball team and color guard tweeted the meme. A year later, Bell notified the school of the alleged infringement. “The district promptly removed both posts, told Bell that the mistake was a ‘teachable moment,’ and announced it was implementing a training program to avoid similar incidents.” Bell sued anyways. The school moved to dismiss on fair use grounds, and the district court granted the motion and awarded attorneys’ fees to the school. (I mentioned that ruling here). Bell appealed to the Fifth Circuit, which easily affirms the fair use dismissal and attorneys’ fees.

Nature of the Use. The court treats this factor as having three discrete subfactors:

• Commerciality. A high school’s tweet isn’t commercial: “it is hard to imagine how the school could derive a commercial benefit from that use. The tweets’ only conceivable motivation was to inspire students to strive for success.”
• “Good faith.” The school displayed the passage in quotes, attributed the work, and removed it promptly on notice.
• Transformative. Not the case here. The passage was presented verbatim.

Because two of the three subfactors weighed for the defense, the court says this factor overall weighs for the defense. It’s odd to see an appeals court turn the first factor into multiple subfactors, and the good faith subfactor is a tautology (and largely redundant with the other fair use elements). Counting up subfactors to determine the leaning of the first factor is even more odd. Still, the first factor reached the right conclusion.

Nature of the Work. The passage is “somewhat creative” despite consisting of “well-worn truisms.” But the court says this is the least important factor, and Bell “carries it by a narrow margin.”

Amount Taken. “The school quoted a small excerpt from Winning Isn’t Normal, which was already freely available to the public.”

Market Effect. “We do not see a plausible economic rationale to support Bell’s assertion that widespread tweeting of the WIN passage would undermine the value of his copyright….the properly attributed quotation of a short passage from Winning Isn’t Normal might bolster interest in the book; it is free advertising….. Viral sharing of the WIN Passage on Twitter might enhance the notoriety and appeal of Bell’s work, thereby increasing the incentive to purchase products displaying it.”

Most courts have rejected the fair use defense that secondary usages provide beneficial marketing for the copyright owner. Instead, courts usually let the copyright owners decide how best to do marketing for their works. When the alleged infringement involves a chunk that could qualify for copyright protection on a standalone basis, those courts usually consider the standalone licensing market for that chunk and say the purported marketing activity still requires a license. Oddly, the court disregards Bell’s standalone registration in the passage and focuses on the effect on the book’s market.

Bell did argue that he licenses the passage on a standalone basis, but “Bell is unable to allege that anyone has ever purchased a license before posting the WIN Passage on social media—much less a public school district, which has no commercial interest in its online presence.”

The court’s reliance on the marketing benefit of the school’s tweet is a strong indicator of how unpersuasive they found Bell’s case. I would not expect that argument to work reliably in closer cases.

The court summarizes its fair use analysis:

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

The court also upholds the attorneys’ fee award with more critical remarks about Bell’s litigation:

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.

Implications

This is a published opinion following the Supreme Court’s Google v. Oracle fair use ruling, so it’s the new benchmark for fair use jurisprudence in the Fifth Circuit. Overall, that’s good news for defendants. However, as usual, the court twists several of the factors to reach an equitable result. Be careful about relying on the court’s rationales in cases that don’t involve highly similar facts.

This is yet another case where a serial litigant loses a fair use ruling on a motion to dismiss. The appellate court found this easy to do because Bell explicitly addressed the four fair use factors in his complaint. Perhaps being so upfront about fair use in the complaint increased the odds of a successful motion to dismiss.

I wonder if folks like Bell will gravitate towards the CCB. It’s tailor-made for his style of copyright enforcement, but he may prefer the bigger damage awards and potential attorneys’ fees that are available only in federal court. As a repeat litigant, Bell might also trip over the CCB’s proposed cap of 10 proceedings per year. If so, I expect repeat litigants like him will prefer to consolidate all of their cases in federal court for economies of scale rather than maintain a docket that simultaneously mixes CCB proceedings and court cases.

Bell’s “inspirational” passage starts and concludes with the truism that “winning isn’t normal.” The results of this lawsuit give him more first-hand experience with that. Maybe his next book will extend his sports analogies to the judicial system.

Case citation: Bell v. Eagle Mountain Saginaw Independent School District, 2022 WL 575676 (5th Cir. Feb. 25, 2022)