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 educa...