Funny enough, it was only a few weeks back that we last discussed Dr. Keith Bell and the slew of lawsuits he has filed over depictions and/or retweets on social media of a passage he wrote, referred to as “The Winning Isn’t Normal” passage. These suits, which largely are over retweets of the passage, are trash from a legal standpoint. Fair use is definitely in play in these cases, as they are in instances where the tweet was direct rather than a retweet. But the point of the suits isn’t to be on solid legal ground for the full courtroom experience. Bell mostly sues school districts with sports programs, or non-profits, ostensibly with the goal of extracting settlement money from them to make his lawsuits go away. All the while, Bell effuses the stench of over-confidence in his works’ importance (more on that later, trust me).
But if you’re trying to do the copyright bullying schtick, it’s best not to go after a person or entity with the resources to fight back. Which is exactly what Bell did when he sued Lane Kiffin, a rather well known and successful college football coach, for tweeting out a picture of the passage. The court did its fair use analysis, ultimately finding in favor of Kiffin in his motion to dismiss.
But, man, there is some real meat in this ruling. The court goes to great lengths to compare this suit to a couple of others among the many that Bell has filed, noting that he doesn’t seem to take any lessons from his previous losses in those copyright suits. The court also noted that Bell’s own website made the passage freely available in several places at the time of Kiffin’s use and up to the date of the ruling. Bell never disputed that assertion made by Kiffin directly, but rather merely asked the court to not make that assumption. In other words: I’m not answering, but you can’t assume the answer is “yes.”
The court certainly did not like that.
This is the sort of too-clever-by-half argument which this court dislikes under any circumstances, but which it finds particularly distasteful within the context of plaintiff’s ongoing abuse of the copyright litigation process. In so stating, this court takes judicial notice of the fact that anyone who visits plaintiff’s website today can see the entire WIN Passage for free, at several different links on that site. See, e.g. https://winningisntnormal.com/product/w-i-n-12×18-poster-biker/.
Moreover, plaintiff does not dispute that this was also the case when Eagle Mountain was decided. That being the case, it certainly stands to reason that Bell’s website offered visitors free views of the WIN Passage at the time Kiffin made the tweet at issue in this case, and at no point in his briefing does plaintiff deny that this is the case. Plaintiff has instead chosen to take a coy “I’m not saying it is, but I’m not saying it isn’t either” position on this issue, with which this court has little patience.
More patience than I would have had, honestly. The plain money-grab nature of the suit, and the behavior of Bell’s legal team in it, is fairly obvious to anyone with a working frontal lobe.
And I imagine it took some real effort to keep that patience, given some of the other passages in the ruling. Take a look at this, for instance, when it comes to how Bell appears to value his own work to rather extreme levels.
This court notes that plaintiff appears to have an exceedingly high opinion of the literary
value of his WIN passage, proclaiming on his website that “[t]he separately copyrighted Winning Isn’t Normal passage (“WIN”) is likely the most read & widely used literary work in history!” See https://winningisntnormal.com/.This extraordinary assertion, with which Shakespeare,Tolstoy and Faulkner might take issue, frankly causes this court to wonder whether it is dealing with a litigant whose feet are firmly planted on the ground. While this court might ordinarily suspect that such an assertion was made in jest, there is nothing funny about the dozens of lawsuits which plaintiff has filed against numerous entities which, as the Fifth Circuit noted in Eagle Mountain, were mostly “public schools or nonprofits.”
What is firmly planted, at least, is a rather complete win for Kiffin over this copyright bully. And, hopefully at least, each of these compounding losses for Bell, and the written beatdowns within the court rulings, make it harder for Bell to succeed in bullying anyone in the future.
These spurious lawsuits, after all, aren’t particularly normal.
