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"Winning Isn't Normal" Author Loses Appeal

5th Circuit affirms lower court

Winning isn't normal. This is a lesson that even the quote's author had to learn...twice. Our last blog post on the Bell v. Eagle Mountain-Saginaw School District saga reported that a Texas court sided with Eagle Mountain and ruled that its tweets constituted fair use. Since that update, Bell appealed the decision and the appellate court issued its findings.

In its February 25, 2022, Opinion, the Fifth Circuit ruled on whether the tweets constituted fair use considering the four factors of fair use. For factual details of the case, please see our previous post. In this post, we will review the appellate court's analysis of the fair use factors.

The court notes that the first fair use factor looks at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” On this count, the appellate court ruled that “the school’s use was noncommercial.” The court reached this conclusion in part because “it is hard to imagine how the school could derive a commercial benefit” from “(sharing) a single page of Bell’s work with fewer than 1,000 online followers.”

Next, the court considered the second factor, the nature of the work. The court concluded that Bell won this factor “by a narrow margin” as "the WIN Passage is somewhat creative.”

The third factor assesses the amount of the work used in relation to the whole work. The court took a neutral position as it found that the WIN Passage is “qualitatively significant” (favoring Bell) but “was already freely available to the public” (favoring Eagle Mountain).

Finally, the court turned to the fourth factor which looks at the effect of the use on the market for the copyrighted work. The court noted that it did "not see a plausible economic rationale to support Bell's assertion that widespread tweeting of the WIN passage would undermine the value of his copyright." Affirming the lower court, the appellate court ruled that, “[t]he fourth factor… weighs in favor of fair use” as ultimately, “Bell was unable to identify any actual financial injury associated with [the tweets] but brought suit anyway.”

When taken together, the appellate court determined the fair use factors weighed in favor of fair use, and affirmed the previous decision favoring Eagle Mountain.

The appellate court also reviewed the lower court's award of attorney's fees to Eagle Mountain. In affirming the award, the court noted Bell's "long history of suing public institutions and nonprofit organizations over de minimis uses of his work." The court also stated "that Bell is a serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements[,]" and therefore "[a]ttorney's fees were thus an appropriate deterrent . . . ."