A few years ago, I summarized Keith Bell’s copyright enforcement efforts:

Bell printed a brief ebook in 1982. It contained a passage that has transform a meme within the sports activities group. Bell has one at a time registered a copyright within the passage. Bell has filed no less than 25 copyright complaints.

Two prior weblog posts on Bell’s litigation efforts:

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This situation comes to Ole Pass over soccer trainer Lane Kiffin, who tweeted a photograph of the passage on March 20, 2022. The court opinion features a screengrab of the tweet (see web page 3). I’m showing just a portion of it to additional enhance my truthful use place so I’m much less more likely to be Bell’s subsequent goal. The picture presentations how Kiffin it seems that tweeted a photograph of a work of paper posted someplace (perhaps taken thru a tumbler window?), somewhat than a extra conventional meme show:

The pass judgement on has a adverse affect of Bell’s copyright enforcement marketing campaign:

there’ll all the time be some litigants who search to abuse [copyright law], and this court docket believes that there’s excellent explanation why to suspect that this example comes to one of these litigant…

This court docket notes that plaintiff seems to have an exceedingly top opinion of the literary price of his WIN passage, proclaiming on his web page that “[t]he one at a time copyrighted Successful Isn’t Standard passage (“WIN”) is most likely essentially the most learn & broadly used literary paintings in historical past!” This bizarre statement, with which Shakespeare, Tolstoy and Faulkner would possibly take factor, [FN] frankly reasons this court docket to wonder if it’s coping with a litigant whose toes are firmly planted at the flooring. Whilst this court docket would possibly ordinarily suspect that such an statement used to be made in jest, there’s not anything humorous in regards to the dozens of complaints which plaintiff has filed in opposition to a lot of entities which, because the 5th Circuit famous in Eagle Mountain, have been most commonly “public faculties or nonprofits.” Additionally, whilst the defendant on this case, a rich and well-known soccer trainer, is significantly much less of an “underdog” determine than lots of the different entities that plaintiff has sued, Kiffin does have the benefit of being a defendant residing on this circuit who made the allegedly offending Twitter publish after the 5th Circuit had issued its opinion in Eagle Mountain.

[Eric’s Note: Mississippi is a Fifth Circuit jurisdiction, so the Fifth Circuit’s Eagle Mountain ruling is binding precedent on this court].

This court docket notes that, following the 5th Circuit’s determination in Eagle Mountain, plaintiff seems to have merely shrugged his shoulders, loaded his lined wagon and brought his touring litigation display to the following courthouse…

This court docket strongly disagrees with plaintiff’s statement that it will have to forget about the truth that he has not too long ago been sanctioned with legal professionals’ charges in two very equivalent movements and pay attention only upon his allegations on this case…

Having now noticed plaintiff’s touring litigation display make a forestall in its courthouse, this court docket isn’t required to forget about the information that 1) opinions of that display are filtering in from surrounding communities, and a pair of) the ones opinions aren’t in any respect sure….

this court docket concludes that there’s even higher motive to doubt plaintiff’s excellent religion in submitting this and different equivalent movements than when the 5th Circuit in Eagle Mountain recognized him as “a serial litigant, who makes exorbitant calls for for damages in hopes of extracting disproportionate settlements.”

[FN: Any list of most-read literary works of all time would likely include the Bible. Wikipedia lists the best-selling books of all time, which is a good prospect list for the most-read and most-widely used literary works. Tolstoy’s War and Peace does not rank near the top. Faulkner’s books don’t appear on the list at all. The judge doesn’t appear to be a fantasy/sci-fi fan, because better candidates for most-read literary works would include the Harry Potter and Tolkien series. Surprisingly, Bell’s book doesn’t appear on the Wikipedia list at all. It must be all of that copyright infringement keeping sales down.]

The court docket’s final analysis: it’s going to believe Bell’s previous litigation habits as a part of the truthful use protection, which is sensible for the reason that truthful use protection is equitable in nature…and who needs to prefer a copyright proprietor for repeated bad-faith enforcements?

when a plaintiff’s claimed hobby in protective his highbrow belongings rights in a selected paintings has been many times discovered by way of federal courts to be of a foul religion nature, it’s fully suitable that courts in next movements believe this reality in making their rulings. This court docket believes this to be suitable now not most effective in accordance with the ones courts’ pursuits in accurately making use of the truthful use components, but additionally as a judicial protection mechanism to forestall litigants from the use of the federal courts as a dumping flooring for his or her abusive complaints.

Perhaps this song impressed Bell…

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Having contextualized this lawsuit as a part of Bell’s broader enforcement marketing campaign, the court docket then turns to the truthful use components:

Nature of Use. The court docket says:

Kiffin’s tweet of the WIN Passage concerned him posting what used to be reasonably clearly a photocopy of a printout of the quote. This court docket regards this reality as vital, since, it believes, any affordable individual studying the tweet would think that Kiffin used to be quoting any person else’s phrases, somewhat than presenting his personal ideas….someone studying Kiffin’s tweet would think that this used to be merely him pronouncing, in impact, “any person mentioned this, and I assumed it used to be price sharing.” This moves this court docket as being one of these contribution to the alternate of concepts which copyright regulation will have to be very hesitant to search out illegal, specifically when the quote in query is of one of these innocuous and non-commercial nature because the WIN Passage….

the sharing of an inspirational or uplifting quote is one thing which many American citizens would to find to constitute an acceptable, and even laudable, use of social media, even supposing the poster is not able to bear in mind precisely who mentioned it. This court docket additional believes that courts will have to be very hesitant to search out that, by way of posting an inspirational quote on this approach, a social media poster has violated copyright regulation

The court docket appears to be hinting that creator attribution supplies a protection to copyright infringement, or no less than a pro-defense reality within the truthful use research, yet it isn’t.

The court docket it seems that embraces social media meme tradition with out the use of the phrases. As mentioned in the King case, there’s no “but-it’s-a-meme” protection to copyright infringement, yet some judicial deference will have to be given to meme utilization given its significance to how other folks socially categorical themselves these days.

The court docket means that Kiffin had additionally tweeted Bell’s passage in 2016 yet took it down then. The court docket disregards any precedential impact of that match for the reason that Eagle Mountain ruling came about within the intervening years and thus will have to have emboldened Kiffin about his truthful use rights: “an inexpensive individual in Kiffin’s place who cared to investigate the problem would have concluded that he had each prison proper to re-tweet the WIN Passage, no less than on this circuit.”

Nature of the Paintings. “the WIN passage, whilst rarely an earth-shattering little bit of perception, does represent a piece of creativity which numerous coaches and groups have deemed price sharing.”

Quantity Taken. Bell argued that his criticism by no means alleged that the WIN Passage used to be to be had in complete on-line. That is extra related to the character of the paintings, i.e., is the paintings printed or unpublished? The paintings is obviously printed within the ebook both method, so the paintings’s availability on-line shouldn’t subject to the issue in regards to the quantity and substantiality of the copied portion.

In spite of everything, the court docket rips into Bell:

That is one of these too-clever-by-half argument which this court docket dislikes underneath any instances, yet which it reveals specifically distasteful inside the context of plaintiff’s ongoing abuse of the copyright litigation procedure. In so pointing out, this court docket takes judicial realize of the truth that someone who visits plaintiff’s web page nowadays can see all the WIN Passage at no cost, at a number of other hyperlinks on that web page. Additionally, plaintiff does now not dispute that this used to be additionally the case when Eagle Mountain used to be made up our minds. That being the case, it undoubtedly stands to explanation why that Bell’s web page introduced guests unfastened perspectives of the WIN Passage on the time Kiffin made the tweet at factor on this case, and at no level in his briefing does plaintiff deny that that is the case. Plaintiff has as a substitute selected to take a coy “I’m now not pronouncing it’s, yet I’m now not pronouncing it isn’t both” place in this factor, with which this court docket has little persistence

Marketplace Impact. “Kiffin simply tweeted one paragraph out of a whole ebook, and it’s merely now not believable to this court docket that as a result of that tweet, even a unmarried particular person who would possibly have in a different way bought plaintiff’s ebook made up our minds now not to take action.”

That specialize in the ebook passage as its personal standalone paintings doesn’t lend a hand Bell. “The 5th Circuit thus discovered that Bell were not able to exhibit any actual licensing marketplace for his quote.”

The court docket rips into Bell once more:

The use of this court docket’s judicial enjoy and not unusual sense, it sort of feels transparent that the real source of revenue circulate which plaintiff has discovered for his WIN passage is by way of the use of it as a foundation for shakedown complaints through which he seeks to procure settlements from defendants who made the error of tweeting a publish from a person who incorrectly regards himself because the creator of “essentially the most learn and broadly used literary paintings in historical past.” That is, on the other hand, an source of revenue circulate primarily based upon an abuse of the judicial procedure, and that is an abuse which, this court docket believes, the federal courts have a duty to forestall

🎯🙏 I will be able to odor a 505 price shift coming for the protection, because it will have to. Rate-shifts hink the industry type of serial copyright enforcers as it reasons their benefit meter to run in opposite.

The court docket concludes that the truthful use protection prevails and dismisses the case.

State Motion?

Become independent from the truthful use dialogue, the court docket ruminated about whether or not Kiffin tweeted on his personal behalf or as a state worker, which issues as a result of certified immunity would possibly follow if Kiffin used to be tweeting on behalf of the state. The court docket says it “has a tendency to imagine {that a} Twitter publish about “profitable” which used to be written by way of Kiffin on an account which obviously identifies him as the pinnacle soccer trainer of the College of Mississippi is in all probability one that used to be made on behalf of his employer.”

That is an reverse end result than the majority of the post-Lindke rulings which can be treating social media accounts by way of executive staff as personal accounts–when treating the accounts as executive accounts would create legal responsibility.

Different Notes

Beneath Trainer Kiffin, the Ole Pass over soccer workforce has been on a roll. It went 9-3 this yr and can be showing within the Gator Bowl subsequent week (which it’s appreciated to win by way of 2 touchdowns). Copyright plaintiffs will to find extra luck suing the Ole Pass over soccer trainer in a Mississippi court docket when the workforce isn’t doing smartly LOL.

Bell’s legal professionals on this case are John R. McCarroll, III of Burch Porter & Johnson in Memphis and two legal professionals from Loeb & Loeb: Keane A. Barger and Timothy L. Warnock. I don’t suppose they are going to need to listing this opinion of their company bio “consultant issues.”

One thing about Bell’s copyright enforcement marketing campaign made me recall to mind this song. (I’ve a half-dozen songs by way of The Sound in my 1980s playlist). I invite your ideas of different winning-themed songs that would possibly signify Bell’s marketing campaign.

Case Quotation: Bell v. Kiffin, 2024 WL 5125159 (N.D. Pass over. Dec. 16, 2024)