Liberty University relies on prior case law regarding fair use of the allegedly infringed work.
In early January, we reported on author Dr. Keith Bell’s latest copyright infringement suit against Liberty University. Dr. Bell alleged that Liberty infringed the copyright in his 1981 work Winning Isn’t Normal by posting a passage from the work. Dr. Bell has brought several suits alleging infringement of this same work.
Liberty has now asked for the case to be dismissed under Federal Rules of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Liberty purports that Bell used “bare-bones” allegations to mask the fact that Liberty’s use of the allegedly infringing passage was for an educational event. Liberty claims that its use of the passage from Bell’s book was educational fair use. In so claiming, Liberty points to Bell v. Magna Times, LLC, 2019 WL 1896579 (D. Utah Apr. 29, 2019) where the court found Magna Times’ use of the same passage from Bell’s work was fair use.
Liberty walks through the fair use factors: First, Liberty purports that its use was for “education [and] fellowship,” not commercial purposes, thus this factor favors fair use. Second, Liberty relies on the Magna Times court’s characterization of the nature of Bell’s work. The Magna Times court found the passage was “just a small portion of a much more substantial work that has been widely published for over thirty-five years,” ( Magna Times, LLC, 2019 WL 1896579 at *5) and that this factor weighs in favor of fair use. Third, Liberty argues that Bell failed to provide any support for his allegation that the passage used is the heart of the work. In addition, Liberty again relies on the Magna Times court’s interpretation that only a small portion of the full-length book was used, so this factor also points to fair use. Finally, Liberty points to Bell’s failure to allege any impact on the potential market from Liberty’s use of the passage, and thus argues that the fourth factor also favors fair use. For these reasons, Liberty asks the court to grant its motion to dismiss.
Bell filed a response to Liberty’s motion, arguing that Liberty’s use of the passage was not fair use and that reliance on
Magna Times was misplaced. Bell also argues that due to the “fact sensitive nature of [fair use] inquiry,” it is inappropriate for the court to address a defense of fair use until the summary judgment phase.