Court Finds Coach of the Miami Dolphins Use of a Powerful Passage From Self-Help Book is Probably Not “Fair Use”
Steven T. Lowe
On May 13, 2021, Gerald Alexander, coach of the Miami Dolphins football team, posted a passage on Twitter from a book by Dr. Keith Bell called Winning Isn’t Normal. The passage used was in essence: “Winning isn’t normal… Winning is unusual – as such it requires unusual action. In order to win you must do extraordinary things…” Dr. Bell owns a copyright to not only the entire book but to the specific passage tweeted by Mr. Alexander (called the “WIN passage”). Upon noticing Mr. Alexander’s tweet, Dr. Bell sent the Miami Dolphins two cease and desist letters, and then filed a lawsuit against the coach and the Miami Dolphins in December 2021 in the U.S. District Court for the Southern District of Florida.
After being served with the lawsuit, Coach Alexander and the Miami Dolphins filed a motion to dismiss, arguing that his use of the passage is protected under the “fair use” doctrine. On August 3, 2022, the Court denied the Motion to Dismiss.
First, the Court found that it was too early in the process to fully evaluate all of the fair use “factors.” However, the Court did briefly review the four factors listed in the fair use portion of the Copyright Act, namely 17 U.S.C §107.
The first factor is the “purpose and character of the use,” which looks at whether the use is commercial or for nonprofit/educational purposes. For this factor, the court asked whether the Coach’s Twitter page was commercial in nature. While at first glance, the Court found the tweet was “noncommercial” the Court determined that the record was not developed enough to determine whether Coach Alexander sought financial benefit from his social media. Needless to say, most people do in fact use their social media to advance their career and business goals. Thus, the Court held that the first factor was “inconclusive.”
The second factor is the “nature of the copyrighted work.” For this factor, courts consider whether the work is informational or creative. Courts generally disfavor fair use the more creative a work is. Here the Court found that the passage was “minimally creative.” Thus, the Court found this factor preliminarily weighed in favor of finding fair use.
The third factor is the quantity and quality of the portion used in relation to the copyrighted work as a whole. Since Coach Alexander used one page of a seventy-two-page book, the Miami Dolphins argued that the use was minimal. However, the Court found that the passage could be said to be the “heart” of Dr. Bell’s work. The Court also noted that the passage is found on various products, such as posters and t-shirts (presumably licensed by Dr. Bell). Thus, it was an important part of Dr. Bell’s work. This factor weighed in favor of Dr. Bell.
Finally, the Court analyzed the fourth factor, namely the effect on the potential market for the copyrighted work. However, because his factor is so hard for a plaintiff to prove, the burden is on the Miami Dolphins to show the lack of harm to Dr. Bell. While Dr. Bell did not specifically identify any loss of money or other economic harm, the Court found that there was that possibility. Thus, the Court said at this stage the factor is inconclusive and requires further development of the record.
Authors Note: The Coach’s tweet could also help the market for Dr. Bell’s book about winning, depending upon how well the Miami Dolphins do while Coach Alexander is their coach.
Bell is representing himself.
Alexander and the Miami Dolphins are represented by Gregory Scott Glasser of LaCava Jacobson & Goodis.
The case is Bell v. Alexander, case number 1:21-cv-24301, in the U.S. District Court for the Southern District of Florida.
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