Case: 21-10504 Document: 00516218265 Page: 1 Date Filed: 02/25/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 25, 2022
No. 21-10504
Lyle W. Cayce
Clerk
Doctor Keith Bell,
Plaintiff—Appellant,
versus
Eagle Mountain Saginaw Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-1157
Before King, Costa, and Willett, Circuit Judges.
Gregg Costa, Circuit Judge:
Just as famous as some great upsets in sports history are the
motivational speeches that inspired them. Knute Rockne, in a speech
immortalized in film by a future President, asked his Notre Dame players at
halftime to “win one for the Gipper.” They did just that, rallying to beat an
undefeated Army. See Knute Rockne: All American (Warner Bros.
1940). Herb Brooks convinced a group of American college players that for
one night they could be “the greatest hockey team in the world.” They were,
defeating the mighty Soviets in the Miracle on Ice. See Miracle (Walt
Disney Pictures 2004).
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Technology now allows inspirational messages to be conveyed not
only in the locker room but also on social media. The softball team and flag
corps at a public high school outside Fort Worth used their Twitter accounts
to post a motivational passage from sports psychologist Keith Bell’s book,
Winning Isn’t Normal.
We do not know if the tweets motivated the students to perform at a
higher level. We do know that the tweets resulted in Bell’s suing the school
district for copyright infringement. We must decide if the tweets were a fair
use of the copyright that bars this suit.
I
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
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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!
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 December 2017, Chisholm Trail High School’s softball team and
color guard posted the WIN Passage to their Twitter accounts. The posts
credited Bell as the author but did not include a copyright watermark that
Bell imprints on his own digital reproductions of the WIN Passage. No one
at the school sought Bell’s permission before publishing the tweets. Bell
discovered them through online searches soon after they were posted.
Yet Bell waited almost a year—until November 2018—to notify the
school district that two of its social media accounts had infringed his
copyrights. 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.
After settlement negotiations broke down, Bell sued for copyright
infringement. Recognizing that the suit would turn on whether the tweets
were fair use, Bell addressed the affirmative defense in his pleadings. The
complaint devotes a paragraph to each of the four fair-use factors.
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The school district invoked fair use in moving to dismiss the case for
failure to state a claim. The district court granted the motion and also
awarded attorney’s fees to the defendant.
II
To survive a Rule 12(b)(6) motion, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal,
556 U.S. 662, 678 (2009). Determining whether a claim is plausible
“requires the reviewing court to draw on its judicial experience and common
sense.”
Id. at 679.
The failure-to-state-a-claim inquiry typically focuses on whether the
plaintiff plausibly alleges the elements of a claim. But Rule 12(b)(6) dismissal
may also “‘be appropriate based on a successful affirmative defense’
provided that the affirmative defense ‘appear[s] on the face of the
complaint.’” Basic Cap. Mgmt. v. Dynex Cap., Inc., 976 F.3d 585, 588 (5th
Cir. 2020) (quoting EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase
Bank, NA,
467 F.3d 466, 470 (5th Cir. 2006)). In this situation, it must be
apparent from “the plaintiff’s own allegations” that a defense is fatal to the
claim. See 5B Charles Alan Wright & Arthur R. Miller, FEDERAL
PRACTICE AND PROCEDURE § 1357 (3d ed. 2021). In other words, the
pleadings must “reveal beyond doubt that the plaintiffs can prove no set of
facts” that would overcome the defense or otherwise entitle them to relief.
Garrett v. Commonwealth Mortg. Corp.,
938 F.2d 591, 594 (5th Cir. 1991). A
claim suffering from this kind of facial deficiency warrants dismissal because
it has “a built-in defense and is essentially self-defeating.” Id. (quotation
omitted). Courts thus grant Rule 12(b)(6) motions when the pleadings
demonstrate that the plaintiff cannot overcome affirmative defenses such as
absolute and qualified immunity, statute of limitations, statute of frauds,
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laches, or res judicata. See Daniel R. Coquillette et al., 2 Moore’s
Federal Practice – Civil § 12.34[4][b] (3d ed. 2021); see, e.g., Basic
Cap. Mgmt., 976 F.3d at 590–93 (granting a motion to dismiss on both
limitations and preclusion grounds).
III
In the copyright realm, fair use is an affirmative defense that can
support Rule 12(b)(6) dismissal. Marano v. Metro. Museum of Art, 472 F.
Supp. 3d 76, 82 (S.D.N.Y. 2020), aff’d,
844 F. App’x 436 (2d Cir. 2021);
Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687, 692 (7th Cir. 2012);
cf. Hensley Mfg., Inc. v. ProPride, Inc.,
579 F.3d 603, 613 (6th Cir. 2009)
(dismissing trademark claim on fair-use grounds). Indeed, the leading
treatise on fair use observes that “[i]ncreasingly, courts have considered fair
use on a [R]ule 12(b)(6) motion to dismiss for failure to state a claim.”
William F. Patry, PATRY ON FAIR USE § 7:5 & n.10 (2017) (citing more
than 25 cases that have evaluated fair use at the Rule 12 stage).
While the fair use defense is usually teed up at summary judgment, we
can resolve it on the pleadings if the complaint contains “facts sufficient to
evaluate each of the statutory factors.” See Harper & Row, Publrs. v. Nation
Enters., 471 U.S. 539, 560 (1985). When discovery is needed to flesh out how
these factors tilt, a ruling at the pleading stage is premature. But as with other
affirmative defenses, if the complaint sets forth all the ingredients of a
successful fair-use defense, discovery is unnecessary. See Fisher v. Dees,
794
F.2d 432, 436 (9th Cir. 1986). And delayed recognition that the plaintiff
cannot plausibly recover prevents dismissal “at the point of minimum
expenditure of time and money by the parties and the court.” See Cuvillier
v. Taylor,
503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly,
550 U.S. at
558); see also Brownmark,
682 F.3d at 691, 694 (disposing of a copyright claim
on fair-use grounds prior to financially “[r]uinous discovery”).
Our question, then, is whether a successful fair-use defense appears
on the face of Bell’s complaint.
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The fair-use doctrine balances the “inherent tension” between
copyright’s interests in protecting author’s works and permitting others to
reference them in cultural conversation. Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 575 (1994). Because the overarching goal of copyright is to
stimulate intellectual activity for the public good,
id., courts have long
recognized a “limited privilege in those other than the owner of a copyright
to use the copyrighted material in a reasonable manner without the owner’s
consent.” Fisher,
794 F.2d at 435. This privilege applies when “rigid
application of the copyright statute” would “stifle the very creativity” it is
meant to foster. Stewart v. Abend,
495 U.S. 207, 236 (1990) (quotations
omitted).
Congress codified the fair-use doctrine in the Copyright Act of 1976
and listed four factors that courts should consider when applying it:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
17 U.S.C. § 107.
The four factors are not exclusive. Harper & Row, 471 U.S. at 560.
“All are to be explored, and the results weighed together, in light of the
purposes of copyright.” Campbell,
510 U.S. at 578. A fair-use defense can
succeed even if one or more factors favor the claimant. See id.; Compaq
Comput. Corp. v. Ergonome Inc.,
387 F.3d 403, 409–10 (5th Cir. 2004). Courts
typically give particular attention to factors one and four (the purpose and
market effect of the use). See Monge v. Maya Mags., Inc.,
688 F.3d 1164, 1171
(9th Cir. 2012); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use
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Opinions, 1978–2005, 156 U. Pa. L. Rev. 549, 584 (2008) (finding that “the
outcomes of factors one and four very strongly correlated with the test
outcome” in a survey of caselaw). But, ultimately, courts have “almost
complete discretion in determining whether any given factor is present in any
particular case” and whether the totality favors fair use. See Melville B.
Nimmer & David Nimmer, 4 Nimmer on Copyright § 13.05(A)(4)
(Matthew Bender rev. ed. 2021).
A
The first factor considers “the purpose and character of the use,
including whether such use is of a commercial nature or is for nonprofit
educational purposes.” 17 U.S.C. § 107(1). This involves a few
considerations. The first and most obvious is commerciality—“whether the
user stands to profit from exploitation of the copyrighted material without
paying the customary price.” See Harper & Row,
471 U.S. at 562. The second
is whether the user acted in good faith. Google LLC v. Oracle Am., Inc.,
141
S. Ct. 1183, 1204 (2021); NXIVM Corp. v. Ross Inst.,
364 F.3d 471, 478 (2d
Cir. 2004). The third is whether the use is “transformative,” meaning it
“adds something new” to the copyrighted work. Google, 141 S. Ct. at 1203.
The school district does not assert that its use was transformative but argues
the other inquiries tip the first factor in its favor. We agree.
First, the school’s use was noncommercial. Nothing in Bell’s
complaint indicates that the public school district profited by posting a onepage excerpt of Bell’s book on Twitter. Indeed, it is hard to imagine how the
school could derive a commercial benefit from that use. 1 The tweets’ only
1
The school district did not, for example, charge others to access the WIN Passage,
cf. Elvis Presley Enters. v. Passport Video, 349 F.3d 622, 628 (9th Cir. 2003), or pawn the
work off as its own, Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc.,
626 F.2d 1171,
1176 (5th Cir. 1980). Nor did it reproduce a substantial portion of Winning Isn’t Normal to
save its students the cost of purchasing the book. Cf. Worldwide Church of God v. Phila.
Church of God, Inc.,
227 F.3d 1110, 1118 (9th Cir. 2010).
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conceivable motivation was to inspire students to strive for success. Indeed,
the pleadings show that the school’s Twitter accounts routinely tweeted
similar motivational messages to students, such as “Color guard!!! . . . . don’t
stop until you’re PROUD.” In Rule 12 lingo, this means any commercial
benefit is implausible.
Bell argues that the tweets could indirectly benefit the school by
bolstering the “professional reputation” of its athletics programs. Enhanced
reputation can be a commercial benefit, such as when a scientist falsely
presents another’s article as her own. See Weissmann v. Freeman, 868 F.2d
1313, 1324 (2d Cir. 1989). That is because scientists are judged by the quality
of their research, so a scientist who takes credit for another’s good work
enhances her professional status and likely her salary down the road.
Id.
(recognizing that “profit is ill-measured in dollars” in academia because
public recognition is what “influences professional advancement and
academic tenure”). That rationale does not apply to the tweets of Chisholm
Trail High’s softball team and color guard. The tweets did not tout the
successes of those programs or bring tales of their fame and glory to the
outside world. The tweets attempted to motivate the student members to
perform at their best, not to motivate donors to contribute to the programs.
There is no logical theory for how tweeting Bell’s motivational message to
inspire students would enhance the reputations of these programs, let alone
how that might lead to some tangible benefit for the school district later on.
The complaint thus does not plausibly allege that the school district
profited from its use of Bell’s work. With this first consideration, the district
takes the lead. See Google, 141 S. Ct. at 1204 (“There is no doubt that a
finding that copying was not commercial in nature tips the scales in favor of
fair use.”).
The school’s good faith adds another point to the scorecard. See
Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 23 (1st Cir. 2000). Good
faith does not excuse infringement. See
id. Nevertheless, because “fair use
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presupposes good faith and fair dealing,” the propriety of the defendant’s
conduct does factor into “the equitable balance of a fair use determination.”
Fisher, 794 F.2d at 432 (quoting Harper & Row,
105 S. Ct. at 2232). The
school posted the WIN Passage in quotes and credited Bell as the author. See
Nunez,
235 F.3d at 23. Bell discovered the posts soon after but waited nearly
a year before telling the school he disapproved of them. 2 Once he did, the
school immediately removed the posts and responded that the incident was
“a teachable moment” it would be sure not to repeat. We do not see anything
in the school’s conduct “sufficiently blameworthy” to weigh against fair use.
See
id.
Bell insists that the first factor still weighs against fair use because the
school’s use was not transformative. But “transformative use is not
absolutely necessary for a finding of fair use.” Campbell, 510 U.S. at 579. It
just strengthens the claim to fairness. If expression is not transformative,
“other factors, like the extent of its commerciality, loom larger” and require
a stronger showing.
Id. at 580. As a result, even though the school’s use here
was not transformative, the first factor weighs for Eagle Mountain because
its use was in good faith and did not produce a commercial benefit.
B
The second statutory factor is “the nature of the copyrighted work.”
17 U.S.C. § 107(2). “In general, fair use is more likely to be found in factual
works than in fictional works.” Abend,
495 U.S. at 237. To determine the
nature of the work, we consider whether the work has been appropriated for
its “expressive elements,” rather than to disseminate “the underlying
facts.” Harper & Row, 471 U.S. at 563–64. We also consider whether the
2
Courts also look at the propriety of the plaintiff’s conduct when assessing good
faith. See, e.g., Field v. Google Inc., 412 F. Supp. 2d 1106, 1122 (D. Nev. 2006) (considering
both defendant’s good faith in promptly removing the infringing content and plaintiff’s bad
faith in ginning up the litigation); Rubin v. Brooks/Cole Pub. Co.,
836 F. Supp. 909, 918 (D.
Mass. 1993).
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work has been published, as the scope of fair use is “narrower with respect
to unpublished works.” Id. There is no dispute that Bell’s work is published.
The only question, then, is whether the work is factual.
Winning Isn’t Normal is a nonfiction study of athleticism, “based on
psychological principles” derived from Bell’s work in the field. Bell admits
that the book is “factual” in nature. He alleges, however, that the WIN
Passage is not “purely factual” because it articulates facts in a “motivational
and expressive” way.
Construing the pleadings in Bell’s favor as we must, the WIN Passage
is somewhat creative. The passage largely consists of well-worn truisms:
“Every competition only has one winner. . . . You can’t just be one of the
crowd. . . . You have to train more and train better.” Athletes will be familiar
with them all. Still, 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. See Harper & Row, 471 U.S. at 564.
The second factor goes to Bell. But it is a meager victory. The nature
of the work is widely considered the least significant fair-use factor. See
Authors Guild v. Google, Inc., 804 F.3d 202, 220 (2d Cir. 2015); Dr. Seuss
Enters., L.P. v. Penguin Books USA, Inc.,
109 F.3d 1394, 1402 (9th Cir. 1997);
Patry § 7:5. And Bell carries it by a narrow margin.
C
The third fair-use factor examines “the amount and substantiality of
the portion used in relation to the copyrighted work as a whole.” 17 U.S.C.
§ 107(3). We consider whether the amount copied is either a quantitatively
or qualitatively significant part of the original. See Campbell, 510 U.S. at 586–
87. Even a relatively small amount of copying can weigh against fair use if it
captures “the heart” of the work. Harper & Row,
471 U.S. at 565.
Bell alleges that “the WIN Passage is only one page out of 78 pages in
Winning Isn’t Normal but is plausibly ‘the heart of the work.’” That may be
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true. The complaint notes that “Dr. Bell sells merchandise featuring the
WIN Passage” and readers “find it moving enough to share with others on
Twitter.” It would be reasonable to infer from these facts that the WIN
Passage is a key element of Winning Isn’t Normal— maybe even the essence
of Bell’s book. 3
If that were all, copying the WIN Passage would be qualitatively
significant. The pleadings, however, also indicate that the WIN Passage was
freely accessible before the softball team and flag corps posted it. The WIN
Passage appears in images that Bell posts online. Indeed, the complaint
suggests that Bell merely took issue with the post because it “was not the
generally circulated version.” If an infringing use “enables a viewer to see
such a work which he had been invited to witness in its entirety free of charge,
the fact that the entire work is reproduced . . . does not have its ordinary effect
of militating against a finding of fair use.” Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 449–50 (1984). The school quoted a small excerpt
from Winning Isn’t Normal, which was already freely available to the public.
As a result, the third factor is neutral.
D
The fourth factor examines “the effect of the use” on the market for
and value of the copyrighted work. 17 U.S.C. § 107(4). We consider actual
market harm but, more broadly, whether widespread use of the work in the
same infringing fashion “would result in a substantially adverse impact on
3
Because the WIN Passage is plausibly the heart of Winning Isn’t Normal, we need
not consider Bell’s alternative argument that the WIN Passage should be treated as a
separate work.
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the potential market” for the original work and any derivatives. 4 Campbell,
510 U.S. at 590; see also Compaq,
387 F.3d at 410. “This last factor is
undoubtedly the single most important element of fair use.” Harper & Row,
471 U.S. at 566.
Bell does not allege that he actually lost any revenue due to the
school’s use of the passage. Instead, his complaint contends that widespread
use of the WIN Passage on social media could reduce “the incentive to
purchase Winning Isn’t Normal or related merchandise.”
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. See Twombly, 550 U.S. at 566–68 (considering market
realities in evaluating whether a claim is plausible). The tweets do not
reproduce such a substantial portion of Winning Isn’t Normal “as to make
available a significantly competing substitute” for the original work. See
Author’s Guild, 804 F.3d at 223. If anything, the properly attributed
quotation of a short passage from Winning Isn’t Normal might bolster interest
in the book; it is free advertising. See Narell v. Freeman,
872 F.2d 907, 914
(9th Cir. 1989). The same is true for merchandise. An online post is not a
market substitute for a coffee mug. 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. The opposite
inference does not make sense: How would online references to the WIN
Passage reduce the market for merchandise displaying it?
4
The school district asserts that Bell carries the burden on this factor because its
use was not commercial. Although some courts once interpreted Sony as creating a
presumption of de minimis harm for nonprofit uses, see e.g., Princeton Univ. Press v. Mich.
Document Servs., Inc., 99 F.3d 1381, 1385–86 (6th Cir. 1996), the Supreme Court has since
clarified that no such presumption exists, see Patry § 6:4 (“[T]he burden of proving the
defense always remains on the party asserting it.”); Campbell, 510 U.S. at 584–85; Harper
& Row, 471 U.S. at 566–69.
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Bell also alleges that the tweets might impact his ability to license
similar uses of the WIN Passage. But we cannot recognize a “theoretical
market for licensing the very use at bar.” Swatch Group Mgmt. Servs., Ltd. v.
Bloomberg L.P., 756 F.3d 73, 91 (2d Cir. 2014) (quoting 4 NIMMER ON
COPYRIGHT § 13.05(A)(4)). To weigh any possible effect on licensing, we
must first find it plausible that there is a “traditional, reasonable, or likely to
be developed market[]” for licensing the kind of use at issue. See Am.
Geophysical Union v. Texaco Inc.,
60 F.3d 913, 930 (2d Cir. 1994); see also
Cambridge Univ. Press v. Patton,
769 F.3d 1232, 1276 (11th Cir. 2014) (finding
that the availability of licenses for the plaintiff’s copyrighted work “is not
determinative” of a potential market for licensing the defendant’s use). Bell
says he offers licenses for the WIN Passage. Yet despite being embroiled in
litigation for years, 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. Even
in his brief, Bell’s only authority that “such a market exists” is his own
“filing of at least 26 copyright infringement lawsuits” and obtaining
settlements “from at least 90 different alleged infringers.” Bell’s aggressive
efforts to litigate, no matter how successful, are not indicative of a
“traditional” or “reasonable” market for his work. See Hofheinz v. AMC
Prods., Inc.,
147 F. Supp. 2d 127, 141 (E.D.N.Y. 2001) (explaining alleged
infringers “are likely to seek a license to avoid entering the murky realm of
fair use law during the course of litigation”). Absent any plausible allegation
that public schools would willingly pay to tweet the WIN Passage, Bell’s
licensing concerns “are purely speculative.” See Narell,
872 F.2d at 914.
Bell has failed to plausibly allege a “substantially adverse impact” on
a legitimate market for his copyrighted work. The fourth factor thus weighs
in favor of fair use.
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E
Time to tally up the scorecard. The first and fourth fair-use factors
favor the school district, the second narrowly favors Bell, and the third is
neutral. In both their number and importance, the statutory factors show that
the school’s tweets were fair use. This conclusion comports with the
“ultimate test of fair use”: whether copyright law’s goal of promoting
creativity would be better served by allowing the use than preventing it.
Castle Rock Ent., Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 141 (2d Cir.
1998). 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. See Garrett, 938 F.3d at 594.
IV
Bell also challenges the district court’s award of attorney’s fees. We
review this ruling only for abuse of discretion. See Hunn v. Dan Wilson
Homes, Inc., 789 F.3d 573, 588 (5th Cir. 2015).
“[A]ttorney’s fees to the prevailing party in a copyright action is the
rule rather than the exception and should be awarded routinely.” Virgin
Records Am., Inc. v. Thompson, 512 F.3d 724, 726 (5th Cir. 2008) (quotation
omitted). Still, “recovery of attorney’s fees is not automatic.”
Id. It is a
matter of the district court’s discretion. Fogerty v. Fantasy, Inc.,
510 U.S. 517,
533 (1994). Relevant factors include: “frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal components of the case)
and the need in particular circumstances to advance considerations of
compensation and deterrence.”
Id. at 539 n.19 (quotation omitted).
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The district court did not abuse its discretion by following the normal
rule. Bell is not the typical copyright plaintiff seeking “a fair return for [his]
creative labor.” See Twentieth Cent. Music Corp. v. Aiken, 422 U.S. 151, 156
(1975). He has a long history of suing public institutions and nonprofit
organizations over de minimis uses of his work. 5 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. See id. at 618.
…
The judgment is AFFIRMED.
5
See e.g., Bell v. Worthington City Sch. Dist., 2020 WL 2905803, at *3 (S.D. Ohio
June 2, 2020) (tweet by a high-school basketball coach); Bell v. Llano Indep. Sch. Dist.,
2020
WL 5370591, at *1 (W.D. Tex. Feb. 13, 2020) (same); Bell v. Oakland Cmty. Pools Project,
Inc.,
2020 WL 4458890, at *1 (N.D. Cal. May 4, 2020) (tweet by a non-profit aquatics
center for disadvantaged youth); Bell v. Granite Sch. Dist., No. 2:19-CV-00209-DBB (D.
Utah 2019) (reading the WIN Passage at a public school’s sports awards banquet).
15
