With any helpful regulation, … there’ll at all times be some litigants who search to abuse it, and this courtroom believes that there’s good cause to suspect that this case includes such a litigant. In so stating, this courtroom notes that this case bears a rare similarity to a different copyright motion dismissed by the Fifth Circuit in its February 2022 determination in Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. (fifth Cir. 2022). [For more on that Fifth Circuit decision cited in the case, see this 2022 post. -EV] In that motion, the Fifth Circuit dismissed an motion by the exact same plaintiff on this case, primarily based on an nearly an identical citation on social media of an inspirational passage from his guide Successful Is not Regular. {[I]t is not possible for this courtroom to enhance upon holdings that are, by their very nature, binding precedent on this circuit.}
In Eagle Mountain, the Fifth Circuit described plaintiff’s guide as follows:
In 1982, Bell printed Successful Is not Regular, a 72-page guide that gives methods for achievement in athletics. Bell continues to market and promote Successful Is not Regular by on-line retailers and his private web site, the place he additionally affords merchandise, together with t-shirts and posters that show the passage that was quoted within the tweets.
That passage, which Bell calls the WIN passage, is individually copyrighted. Bell affords licenses for its use. The passage reads:
Successful is not regular. That does not imply there’s something mistaken with profitable. It simply is not the norm. It’s extremely uncommon.
Each competitors solely has one winner. Irrespective of how many individuals are entered, just one particular person or one staff wins every occasion.
Successful is uncommon. And as such, it requires uncommon motion.
To be able to win, you should do extraordinary issues. You may’t simply be one of many crowd. The gang would not win. You need to be prepared to face out and act otherwise.
Your actions must replicate uncommon values and priorities. You need to worth success greater than others do. You need to need it extra. Now take observe! Wanting it extra is a choice you make and act upon—not some inherent high quality or burning interior drive or inspiration! And you must make that worth a precedence.
You may’t practice like everybody else. You need to practice extra and practice higher.
You may’t discuss like everybody else. You may’t assume like everybody else. You may’t be too prepared to hitch the gang, to do what is anticipated, to behave in a socially accepted method, to do what’s “in.” It’s good to be prepared to face out within the crowd and constantly take distinctive motion. If you wish to win, you’ll want to settle for the dangers and maybe the loneliness … BECAUSE WINNING ISN’T NORMAL!
This case arises from Kiffin’s March 20, 2022 tweet of the very same passage quoted above ….
This courtroom observes that, after quoting this identical passage in Eagle Mountain, the Fifth Circuit famous plaintiff’s predilection for suing public faculties and different non-profit entities, in a way which many would regard as significantly lower than inspirational. Particularly, the Fifth Circuit wrote that:
Bell has one other income stream. He zealously seeks out and litigates unauthorized makes use of of the WIN Passage. Between 2006 and 2017, Bell filed over 25 copyright lawsuits. Many of the defendants had been public faculties or nonprofits, which printed the WIN passage on social media.
In affirming the district courtroom’s award of attorneys’ charges in opposition to Bell, the Fifth Circuit had very harsh phrases for his litigation practices, writing that:
Bell shouldn’t be the standard copyright plaintiff looking for “a good return for [his] creative labor.” He has an extended historical past of suing public establishments and nonprofit organizations over de minimis makes use of of his work. Taking these instances into consideration, the district courtroom moderately concluded that Bell is a serial litigant, who makes exorbitant calls for for damages in hopes of extracting disproportionate settlements. This case is one other within the line. The college shared a single web page of Bell’s work with fewer than 1,000 on-line followers and instantly eliminated the posts upon request. Bell was unable to determine any precise monetary harm related to that use however introduced swimsuit anyway. Lawyer’s charges had been thus an applicable deterrent, each with respect to Bell and different copyright holders who may think about the same enterprise mannequin of litigation.
Whereas there was clearly a robust air of disapproval within the Fifth Circuit’s description of plaintiff’s serial litigation practices, that courtroom nonetheless gave his copyright arguments thorough consideration earlier than finally concluding that the truthful use doctrine protected the reposting on social media of the identical “Successful Is not Regular” passage which is at problem right here….
The criticism doesn’t counsel that the college’s use had any cognizable, adversarial affect on Bell. What it does clarify is that the softball staff and flag corps used Bell’s work in good religion, for no industrial achieve, and for the laudable goal of motivating college students to succeed. We can’t see how the creative arts can be higher served by allowing Bell’s swimsuit to proceed. As a result of a profitable fair-use protection “seems on the face of the criticism,” and Bell can “show no set of info” that might overcome it, the district courtroom correctly dismissed the case.
This courtroom notes that plaintiff seems to have an exceedingly excessive opinion of the literary worth of his WIN passage, proclaiming on his web site that “[t]he individually copyrighted Successful Is not Regular passage (“WIN”) is probably going probably the most learn & broadly used literary work in historical past!” This extraordinary assertion, with which Shakespeare, Tolstoy and Faulkner may take problem, frankly causes this courtroom to wonder if it’s coping with a litigant whose toes are firmly planted on the bottom. Whereas this courtroom may ordinarily suspect that such an assertion was made in jest, there’s nothing humorous in regards to the dozens of lawsuits which plaintiff has filed in opposition to quite a few entities which, because the Fifth Circuit famous in Eagle Mountain, had been principally “public faculties or nonprofits.” Furthermore, whereas the defendant on this case, a rich and well-known soccer coach, is significantly much less of an “underdog” determine than most of the different entities that plaintiff has sued, Kiffin does have the benefit of being a defendant dwelling on this circuit who made the allegedly offending Twitter put up after the Fifth Circuit had issued its opinion in Eagle Mountain.
This courtroom notes that, following the Fifth Circuit’s determination in Eagle Mountain, plaintiff seems to have merely shrugged his shoulders, loaded his coated wagon and brought his touring litigation present to the subsequent courthouse. In December 2022, plaintiff’s present made a cease in Wisconsin the place, as in Eagle Mountain, a district courtroom discovered his litigation ways to be sufficiently abusive to award attorneys’ charges in opposition to him….. Having now seen plaintiff’s touring litigation present make a cease in its courthouse, this courtroom shouldn’t be required to disregard the info that 1) evaluations of that present are filtering in from surrounding communities, and a pair of) these evaluations are by no means constructive….
[P]reventing the federal courts from getting used as a discussion board for abusive shakedown lawsuits is crucial for the integrity of the federal judiciary as a complete and for public confidence in it. On this vein, this courtroom notes that the Fifth Circuit has held that “[a] district courtroom could bar a vexatious litigant from submitting future civil rights complaints except she seeks the prior approval of a district or Justice of the Peace decide.” This courtroom shouldn’t be suggesting that plaintiff has reached this level together with his WIN passage lawsuits (but), however the existence of this authority makes it clear that federal courts are usually not required to disregard prior findings of abusive litigation practices by different judges in evaluating the deserves of a selected declare….
In arguing that Kiffin acted in dangerous religion, plaintiff emphasizes his allegation that, in 2016, Kiffin took down a tweet of the WIN Passage after he despatched him a cease-and-desist letter. Accepting this allegation as true, plaintiff’s downside with looking for to assign dangerous religion to Kiffin on this regard is that the Fifth Circuit issued its opinion in Eagle Mountain shortly earlier than defendant tweeted the WIN passage a second time in 2022. That being the case, this courtroom believes {that a} cheap particular person in Kiffin’s place who cared to analysis the difficulty would have concluded that he had each authorized proper to re-tweet the WIN Passage, no less than on this circuit. This makes it very tough for any federal courtroom to assign dangerous religion to him on this regard, since that might quantity to that courtroom saying that a person acted in dangerous religion for doing one thing which the related federal appellate courtroom had already stated he had a proper to do….
In addressing this third [fair use] issue {“the quantity and substantiality of the portion utilized in relation to the copyrighted work as a complete”}, plaintiff has chosen to play it coy in his briefing, emphasizing that, whereas the Fifth Circuit famous that the criticism in Eagle Mountain particularly alleged that the WIN Passage was freely obtainable on-line, his criticism on this case incorporates no such allegation. Particularly, plaintiff writes in his temporary that:
Kiffin nonetheless argues [the third] issue is “impartial” as a result of Dr. Bell made the WIN Passage “freely accessible” by approved photographs he posted on-line. The FAC, nonetheless, by no means alleges that, on the time Kiffin copied the WIN Passage in 2022, freely accessible, approved photographs of the WIN Passage had been obtainable on-line. Kiffin asks the Court docket to imagine that the factual allegation in Eagle Mountain Saginaw that the WIN Passage was freely obtainable on the time of the college district’s posting in “December 2017[,]” remained true when Kiffin copied the WIN Passage on March 20, 2022. When ruling on a movement to dismiss, a courtroom can’t make that factual assumption that falls exterior the 4 corners of the pleadings.
That is the form of too-clever-by-half argument which this courtroom dislikes beneath any circumstances, however which it finds notably distasteful inside the context of plaintiff’s ongoing abuse of the copyright litigation course of. In so stating, this courtroom takes judicial discover of the truth that anybody who visits plaintiff’s web site at present can see your entire WIN Passage totally free, at a number of totally different hyperlinks on that website. See, e.g. https://winningisntnormal.com/product/w-i-n-12×18-poster-biker/. Furthermore, plaintiff doesn’t dispute that this was additionally the case when Eagle Mountain was determined. That being the case, it actually stands to cause that Bell’s web site provided guests free views of the WIN Passage on the time Kiffin made the tweet at problem on this case, and at no level in his briefing does plaintiff deny that that is the case. Plaintiff has as a substitute chosen to take a coy “I am not saying it’s, however I am not saying it is not both” place on this problem, with which this courtroom has little endurance.
This courtroom needs to be clear that, primarily based on plaintiff’s prior litigation historical past, there is superb cause to suspect that this case is a part of an ongoing scheme on his half to counterpoint himself by abusing the judicial course of. This courtroom is prepared to present plaintiff a chance to steer it in any other case, however he won’t accomplish that with coy and disingenuous arguments.
Fairly on the contrary, the way through which plaintiff makes these arguments, mixed with the way through which his factual allegations seem to alter primarily based upon his evolving view of what’s going to permit him to get well, merely leads this courtroom to conclude that this case shouldn’t be, actually, any totally different from Eagle Mountain or Milwaukee and {that a} widespread thread of dangerous religion runs by all of them….
Defendant’s movement to dismiss this case will subsequently be granted. Defendant has indicated that he could file a movement for attorneys’ charges, and this courtroom will subsequently chorus from issuing the judgment on this case pending consideration of any such movement.
