Here we go again. Many years ago, we wrote about how one sports psychologist, Dr. Keith Bell, filed a copyright lawsuit against a college over a retweet. Specifically, the retweet included an image of a single page from Bell’s book, Winning Isn’t Normal. These suits are nonsense, of course, as a retweet is not the same as publishing infringing material, not to mention all kinds of fair use defenses that would be in play here. But that wasn’t the point of the suit. The point of it, instead, was almost certainly to extract money from Bell’s victim via a settlement to make him go away.
Well, it turns out we could have written many, many more stories about Bell. As you can go and see for yourself, Bell files lawsuits over his book at a velocity that rivals some of the most litigious companies we talk about here. Sadly, the suit that is the subject of this post hasn’t shown up on Court Listener just yet. It is similar to his other suits, except this one was already settled. Bell is now claiming that his victim violated the settlement agreement it never should have signed with him.
Here’s how we got here:
In his lawsuit, Bell argues that as the author of the copyrighted book, “Winning Isn’t Normal,” he was “the first person to string words ‘winning isn’t normal’ together” and the “first person to put the phrase in writing.” The phrase, he says, expresses his philosophy for outperforming the competition in the world of sports.
The Solon district, he alleges, violated his copyright when a district coach retweeted someone else’s tweet quoting from his book. The lawsuit against the Solon district alleges that in May 2018, Bell and the district entered into a settlement agreement to resolve the dispute related to the coach’s tweet. That agreement allegedly included a non-disparagement clause and a promise by the district to halt any further use of the copyrighted work.
Bell now claims the district violated those elements of the settlement agreement, in part by failing to remove the tweet that referenced his work, and by a November 2021 phone call in which Superintendent Davis Eidahl allegedly made defamatory statements with racial undertones.
Okay, so, where to begin? That this action moves the state of this disagreement from a settlement that never should have existed and back into a copyright lawsuit is probably actually a good thing for the Solon school district. The question as to whether a retweet of this kind could be copyright infringement is a frustratingly open one, but it shouldn’t be. Retweeting doesn’t create additional copies of content, but rather a link to the tweet itself. It may make the content more visible to more people, but that isn’t the same as creating a new copy.
As to the allegations that Eidahl’s conduct violated a non-disparagement clause in the settlement agreement, that’s even more odd. Typically non-disparagement clauses prohibit defaming or otherwise negatively portraying a subject publicly or to other parties, not to the subject themselves. But of all the things Bell alleges Eidahl did to disparage him, they appear to have been in 1 on 1 interactions between the two of them.
Included in the lawsuit are Bell’s notes of a November 2021 phone call between himself and Eidahl in which Bell claims Eidahl called him the “worst person in the world” and accused him of being a “lonely old man that has no friends, no family and spends all his days searching the internet to find innocent people to steal from.” Bell also alleges that Eidahl asked “me if I was Muslim in a way that was a slur.”
The court records include a copy of an alleged email exchange between Bell and Eidahl shortly after the phone call in which the superintendent wrote: “It’s sad that you spend all your retired time devoted to preying on well-intentioned public school educators devoted to kids. It’s unfortunate that you target public school educators and public school districts to make your living in a time when public school funding is so limited. How much money is enough for you? These educators that you prey on for your own greed are hard-working, good-intentioned individuals that devote their life to kids. I was upset during our call because you continue to target individuals that have sacrificed so much for kids. Now that I’ve given it more thought, I actually feel sorry for you. I can’t imagine the character it takes to devote (your) retirement to these actions. It’s sad.”
The Muslim question is obviously gross if true. But the rest of it is only barely related to the dispute that brought about the settlement agreement. And if this was all in 1 on 1 interactions, verbal or written, I’m struggling to see how this would violate any sane anti-disparagement clause in the settlement agreement. One which, again, never should have been entered into.
So now, in theory, this will go to court. And that’s ultimately a good thing, because we need to start seeing some precedents set as to whether retweets of this nature can constitute copyright infringement or not.
