Sports Psychologist's Claim against Liberty University Dismissed with Prejudice
We reported on earlier developments in this case on January 6, 2020 and February 24, 2020.
Early this year, Dr. Keith Bell ("Bell") filed a Complaint against Liberty University (the "University") alleging that the University had infringed on his copyright in the "WIN Passage" (the "Passage"). The Passage is a well-known excerpt from Bell's book, Winning Isn't Normal (the "Book"). The University had included the Passage on an online invitation for a student round-table held on its campus to address sports psychology and athlete improvement. Bell's Complaint maintained that the use appropriated the heart of the Book and didn't make use of licensing opportunities that he makes available for the Passage.
In response to the Complaint, the University filed a motion to dismiss for failure to state a claim upon which relief can be granted. This motion was based on a defense of fair use. The University relied on a similar case in which Bell made a copyright claim that was dismissed (Bell v. Magna Times, LLC, 2019 WL 1896579 (D. Utah Apr. 29, 2019)), and asserted that (1) its use of the Passage was for nonprofit, educational purposes; (2) the Passage is more factual than creative and thus more susceptible to fair use; (3) the Passage is only a small part of the Book; and (4) the University's use did not damage the market for the Book.
In addition to addressing the four fair use factors, the University asserted that, "[o]ver the years, [Bell] has filed at least 38 lawsuits alleging copyright infringement . . . ." The University further noted that, "[m]any Courts rightfully have expressed concern about [Bell]'s shakedown litigation strategy[,]" and quoted another court in articulating a concern over "copyright trolls" which are "defined as plaintiffs who are 'more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties . . . .'" The University concluded this argument by stating that, "[l]itigation is not a commercial market contemplated by the Copyright Act."
Bell's response to the motion adamantly denied that Bell v. Magna Times is comparable to the present suit and also took issue with the University's conclusions concerning the fair use factors. He countered those conclusions by (1) characterizing the University's use of the Passage as commercial; (2) identifying the Passage as a copyrighted work unto itself; (3) pointing out that the use was not transformative; and (4) by claiming that the use was harmful to his market.
The University filed a reply to this response to rebut Bell's objections. The reply reasserted that the University should prevail based on each of the four fair use factors and reinforced the comparison to Bell v. Magna Times. It seems that the University's fair use arguments were more persuasive to the court than Bell's counterarguments; both parties stipulated to dismissal with prejudice on June 29, 2020.
We have reported on other, similar suits filed by Bell here, here, here, and here.