Bell v. Eagle Mountain Saginaw Indep. Sch. Dist.

• Decision Date: 25 February 2022
• Docket Number: No. 21-10504,21-10504
• Citation: 27 F.4th 313
• Parties: Doctor Keith BELL, Plaintiff—Appellant, v. EAGLE MOUNTAIN SAGINAW INDEPENDENT SCHOOL DISTRICT, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

27 F.4th 313

Doctor Keith BELL, Plaintiff—Appellant,

v.EAGLE MOUNTAIN SAGINAW INDEPENDENT SCHOOL DISTRICT, Defendant—Appellee.

No. 21-10504

United States Court of Appeals, Fifth Circuit.

FILED February 25, 2022

Adam Mandell, Millen White Zelano & Branigan, P.C., Arlington, VA, John Robert Skrabanek, Thompson & Skrabanek, P.L.L.C., New York, NY, for Plaintiff—Appellant.

Kelley Lynn Kalchthaler, Walsh Gallegos Trevino Russo & Kyle, P.C., Austin, TX, Meredith Prykryl Walker, Esq., Walsh Gallegos Trevino Russo & Kyle, P.C., Irving, TX, for Defendant—Appellee.

Before King, Costa, and Willett, Circuit Judges.

Gregg Costa, Circuit Judge:

Just as famous as some great upsets in sports history are the motivational speeches that inspired them. Knute Rockne, in a speech immortalized in film by a future President, asked his Notre Dame players at halftime to "win one for the Gipper." They did just that, rallying to beat an undefeated Army. See KNUTE ROCKNE: ALL AMERICAN (Warner Bros. 1940). Herb Brooks convinced a group of American college players that for one night they could be "the greatest hockey team in the world." They were, defeating the mighty Soviets in the Miracle on Ice. See MIRACLE (Walt Disney Pictures 2004).

Technology now allows inspirational messages to be conveyed not only in the locker room but also on social media. The softball team and flag corps at a public high school outside Fort Worth used their Twitter accounts to post a motivational passage from sports psychologist Keith Bell's book, Winning Isn't Normal.

We do not know if the tweets motivated the students to perform at a higher level.

We do know that the tweets resulted in Bell's suing the school district for copyright infringement. We must decide if the tweets were a fair use of the copyright that bars this suit.

I

In 1982, Bell published Winning Isn't Normal , a 72-page book that provides strategies for success in athletics. Bell continues to market and sell Winning Isn't Normal through online retailers and his personal website, where he also offers merchandise, including t-shirts and posters that display the passage that was quoted in the tweets.

That passage, which Bell calls the WIN Passage, is separately copyrighted. Bell offers licenses for its use. The passage reads:

Winning isn't normal. That doesn't mean there's anything wrong with winning. It just isn't the norm. It is highly unusual.

Every competition only has one winner. No matter how many people are entered, only one person or one team wins each event.

Winning is unusual. And as such, it requires unusual action.

In order to win, you must do extraordinary things. You can't just be one of the crowd. The crowd doesn't win. You have to be willing to stand out and act differently.

Your actions need to reflect unusual values and priorities. You have to value success more than others do. You have to want it more. Now take note! Wanting it more is a decision you make and act upon—not some inherent quality or burning inner drive or inspiration! And you have to make that value a priority.

You can't train like everyone else. You have to train more and train better.

You can't talk like everyone else. You can't think like everyone else. You can't be too willing to join the crowd, to do what is expected, to act in a socially accepted manner, to do what's "in." You need to be willing to stand out in the crowd and consistently take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness ... BECAUSE WINNING ISN'T NORMAL!

Bell has another revenue stream. He zealously seeks out and litigates unauthorized uses of the WIN Passage. Between 2006 and 2017, Bell filed over 25 copyright lawsuits. Most of the defendants were public schools or nonprofits, which published the WIN Passage on social media.

In December 2017, Chisholm Trail High School's softball team and color guard 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 own digital reproductions of the WIN Passage. No one at the school sought Bell's permission before publishing the tweets. Bell discovered them through online searches soon after they were posted.

Yet Bell waited almost a year—until November 2018—to notify the school district that two of its social media accounts had infringed his copyrights. The district promptly removed both posts, told Bell that the mistake was a "teachable moment," and announced it was implementing a training program to avoid similar incidents.

After settlement negotiations broke down, Bell sued for copyright infringement. Recognizing that the suit would turn on whether the tweets were fair use, Bell addressed the affirmative defense in his pleadings. The complaint devotes a paragraph to each of the four fair-use factors.

The school district invoked fair use in moving to dismiss the case for failure to state a claim. The district court granted the motion and also awarded attorney's fees to the defendant.

II

To survive a Rule 12(b)(6) motion, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Determining whether a claim is plausible "requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.

The failure-to-state-a-claim inquiry typically focuses on whether the plaintiff plausibly alleges the elements of a claim. But Rule 12(b)(6) dismissal may also " ‘be appropriate based on a successful affirmative defense’ provided that the affirmative defense ‘appear[s] on the face of the complaint.’ " Basic Cap. Mgmt. v. Dynex Cap., Inc. , 976 F.3d 585, 588 (5th Cir. 2020) (quoting EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank, NA , 467 F.3d 466, 470 (5th Cir. 2006) ). In this situation, it must be apparent from "the plaintiff's own allegations" that a defense is fatal to the claim. See 5B Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2021). In other words, the pleadings must "reveal beyond doubt that the plaintiffs can prove no set of facts" that would overcome the defense or otherwise entitle them to relief. Garrett v. Commonwealth Mortg. Corp. , 938 F.2d 591, 594 (5th Cir. 1991). A claim suffering from this kind of facial deficiency warrants dismissal because it has "a built-in defense and is essentially self-defeating." Id. (quotation omitted). Courts thus grant Rule 12(b)(6) motions when the pleadings demonstrate that the plaintiff cannot overcome affirmative defenses such as absolute and qualified immunity, statute of limitations, statute of frauds, laches, or res judicata. See Daniel R. Coquillette et al., 2 MOORE'S FEDERAL PRACTICE – CIVIL § 12.34[4][b] (3d ed. 2021); see, e.g., Basic Cap. Mgmt. , 976 F.3d at 590–93 (granting a motion to dismiss on both limitations and preclusion grounds).

III

In the copyright realm, fair use is an affirmative defense that can support Rule 12(b)(6) dismissal. Marano v. Metro. Museum of Art , 472 F. Supp. 3d 76, 82 (S.D.N.Y. 2020), aff'd , 844 F. App'x 436 (2d Cir. 2021) ; Brownmark Films, LLC v. Comedy Partners , 682 F.3d 687, 692 (7th Cir. 2012) ; cf. Hensley Mfg., Inc. v. ProPride, Inc. , 579 F.3d 603, 613 (6th Cir. 2009) (dismissing trademark claim on fair-use grounds). Indeed, the leading treatise on fair use observes that "[i]ncreasingly, courts have considered fair use on a [R]ule 12(b)(6) motion to dismiss for failure to state a claim." William F. Patry, PATRY ON FAIR USE § 7:5 & n.10 (2017) (citing more than 25 cases that have evaluated fair use at the Rule 12 stage).

While the fair use defense is usually teed up at summary judgment, we can resolve it on the pleadings if the complaint contains "facts sufficient to evaluate each of the statutory factors." See Harper & Row, Publrs. v. Nation Enters. , 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). When discovery is needed to flesh out how these factors tilt, a ruling at the pleading stage is premature. But as with other affirmative defenses, if the complaint sets forth all the ingredients of a successful fair-use defense, discovery is unnecessary. See Fisher v. Dees , 794 F.2d 432, 436 (9th Cir. 1986). And delayed recognition that the plaintiff cannot plausibly recover prevents dismissal "at the point of minimum expenditure of time and money by the parties and the court." See Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly , 550 U.S. at 558, 127 S.Ct. 1955 ); see also Brownmark , 682 F.3d at 691, 694 (disposing of a copyright claim on fair-use grounds prior to financially "[r]uinous discovery").

Our question, then, is whether a successful fair-use defense appears on the face of Bell's complaint.

The fair-use doctrine balances the "inherent tension" between copyright's interests in protecting author's works and permitting others to reference them in cultural conversation. Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Because the overarching goal of copyright is to stimulate intellectual activity for the public good, id. , courts have long recognized a "limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent." Fisher , 794 F.2d at 435. This privilege applies when "rigid application of the copyright statute" would "stifle the very creativity" it is meant to foster. Stewart v. Abend , 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (quotations omitted).

Congress codified the fair-use doctrine in the Copyright Act of 1976 and listed...