Dr. Keith Bell published a book in 1982 entitled Winning Isn't Normal which provides strategies for success in athletics. He markets the books through online retailers and his own website. One of the passages in the book that is well known is entitled the WIN Passage. He offers merchandise, including t-shirts and posters, that display the WIN Passage. The WIN Passage is subject to a separate copyright registration and he offers licenses for its use.
In December 2017, Chisholm Trail High School's softball team and color guar 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 digital reproductions of the WIN Passage. The school district did not seek his permission before publishing the tweets. Bell discovered the tweets through online searches.
Bell waited almost a year to notify the school that two of its social media accounts had infringed the copyright. The school district removed both posts and told Bell it was a "teachable moment". After settlement negotiations broke down, Bell sued for copyright infringement. The school district invoked the fair use defense and moved to dismiss the claim for failure to state a claim. The district court granted the motion to dismiss and awarded attorney's fees to the school district.
The Fifth Circuit addressed the fair use defense noting it balances protecting an author's work and permitting others to reference them in cultural conversation. While the overarching goal of a copyright is to stimulate intellectual activity for public good, courts have recognized a limited privilege of use by others in a reasonable manner without the owner's consent. Congress codified the fair use doctrine in the Copyright Act of 1976 and listed four factors to be considered in applying the doctrine, namely (1) the purpose and character of the use, including whether such use is commercial in nature or for nonprofit educational purposes: (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; and (4) the effect of the use upon the potential market for or value of the work.
Analyzing these factors, the Fifth Circuit concluded the school's use was in good faith. The use was not commercial as nothing indicated that the school district profited from posting a one-page excerpt from the book. These tweets only served to inspire students to strive for success. Bell argued that the tweets could indirectly benefit the school district by bolstering the professional reputation of its athletic department. However, the court found that the tweets did not tout the success of these programs and were not intended to motivate donors to contribute to the programs. Bell did not argue he lost revenue due to the school's use of the passage but claimed the use could reduce the incentive to purchase Winning Isn't Normal or related merchandise; however, the Court noted that the tweets did not reproduce a substantial portion of the work so as to make available a substitute for the original work. Bell failed to allege a substantial adverse impact on a legitimate market for his copyrighted work.
Finally, the Fifth Circuit found that the district court did not abuse its discretion in awarding attorney's fees to the school district. It noted that Bell has a long history of suing public institutions and non-profit organizations over de minimis uses of his work. Bell was unable to identify any actual financial injury associated with that use and brought suit anyway. The court said that attorney's fees were an appropriate deterrent to Bell and other copyright holders.
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