Bell v. Kiffin: where fair use and bad faith collide

The Copyright Act can be prone to abuse by bad actors who make a business of filing high numbers of low-value actions in federal court rather than the recently created (and less expensive) voluntary Copyright Small Claims tribunal. Such serial litigants leverage the Copyright Act’s range of statutory damages, attorney’s-fee shifting, and the cost of federal litigation to extract outsized settlements even for dubious infringement claims, and it is normally very difficult to dismiss a copyright lawsuit on a Rule 12(b)(6) motion based on fair use. Section 107 of the Copyright Act presents a highly fact-sensitive and often gray inquiry into the contours and limits of the copyright monopoly.

These two concepts collide in a recent opinion from the Northern District of Mississippi. Bell v. Kiffin (N.D. Miss. Dec. 16, 2024) was one-part fair use analysis and one-part flagellation of the plaintiff for abusive litigation tactics — a rare example of a court heavily considering bad faith in the fair use calculus.

Dr Keith Bell wrote the 1982 book Winning Isn’t Normal, a 72-page guide for athletic success. Bell sued Ole Miss head football coach Lane Kiffin because Kiffin tweeted a photocopy of one of Bell’s inspirational quotes about winning (the WIN Passage). Bell, who bizarrely claims that the WIN Passage is “likely the most read & widely used literary work in history,” filed over 25 lawsuits regarding this passage from 2006-2017, mostly against public schools and non-profits.

One such case was Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. (5th Cir. 2022), which the Kiffin court described as bearing “extraordinary similarity.” There, the Fifth Circuit affirmed the dismissal of Bell’s claim on fair use and the district court’s award of attorney’s fees, agreeing he was a “serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements.” Shortly thereafter, the court in Bell v. Milwaukee Bd. of Sch. Directors (E.D. Wisc. 2022) again awarded attorney’s fees for Bell’s “abusive” tactics concerning “de minimis and harmless reference to the WIN Passage” and accused Bell of being a “copyright troll.” Despite Bell’s urging, the Kiffin court took note of these prior observations and emphasized that even looking solely at Bell’s present questionable pleading practices warranted “a finding of bad faith.”

More than halfway through its opinion, the court addressed the merits, repurposing the Eagle Mountain fair use analysis and focusing almost exclusively on the first and fourth factors (nature of the use and market harm). The court pronounced that the fourth factor is “undoubtedly the single most important element of fair use,” embracing the recent post-Warhol elevation of factor four back to its former glory. Indeed, while the Kiffin court (as well as Eagle Mountain) found the defendant’s use to be transformative, the fourth factor more directly informed the intersection of Bell’s bad faith conduct and fair use.

The court concluded that Bell had not plausibly alleged that a tweet containing one paragraph of a 72-page book constituted a “significantly competing substitute” that would undermine the value of his book and, indeed, had not demonstrated any licensing market for his quote, let alone a social media market. Bell’s claim that Kiffin’s “side hustle” as a motivational speaker benefitted from the WIN Passage was speculative and did not distinguish his case from the binding Eagle Mountain.

Shifting again to analyze Bell’s litigation tactics, the court held it was appropriate to consider Bell’s prior bad-faith conduct “not only based on [earlier] courts’ interests in correctly applying the fair use factors” but also “to prevent litigants from using the federal courts as a dumping ground for their abusive lawsuits.” The court concluded that “the actual income stream which the plaintiff has found for his WIN Passage is by using it as a basis for shakedown lawsuits,” which is “an abuse of the judicial process” and did not warrant “assign[ing] plausibility to bare allegations by a known abusive litigant.”

While § 107’s four factors are facially non-exclusive, most courts do not stray from them. Those that do typically consider “public good” or the good/bad faith of litigants, but these considerations are rarely dispositive, especially at the pleading stage. In the context of litigants like Bell, whose antics result in incalculable costs and clogged dockets, perhaps it is time that courts embrace § 107’s flexibility and pay closer attention not only to the use of the works at issue but to users themselves and their motivations.

Winning should not be normal for those with unclean hands, and for creators who do have legitimate copyright cases, there is an alternative to a federal court that should be considered when pursuing claims that might be better served in the voluntary Copyright Small Claims regime now available.

← Back to News