Excerpt from motivational book used in school found to be fair use. BELL v. WORTHINGTON

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Even though United States copyright law uses the word author, that word includes many other creative occupations like painters, sculptors, photographers, musicians and software writers. An original work of authorship is something created by one of these creative occupations. An author can register their copyright with the library of congress to strengthen the rights associated with the copyright, but registration is not required for the author to be granted a copyright to their work. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit for an injunction to stop copyright infringement and to get monetary damages for copyright infringement which has occurred.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. The reason that fair use exists is that copyright law is intended to promote the advancement of the arts and sciences, a fair use of copyrighted matter is a use that promotes advancement.

35 U.S.C. Section 107 Limitations on exclusive rights state that fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Section 107 gives four factors to be considered when a fair use defense is raised. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

BELL v. WORTHINGTON CITY SCHOOL DISTRICT, 2:18-cv-961 (S.D.OH 2020) illustrates a case when an except from a copyrighted work was found to qualify as a fair use.

Plaintiff is a sports psychologist, author, professional speaker, and athletic consultant,wrote the book Winning Isn’t Normal (“WIN”). WIN contains a motivational sports passage that begins “Winning isn’t normal.” Plaintiff sells WIN-related products and licenses WIN to others to use, display, and perform.

Defendant, is a school district that has a basketball team. Coaches of the basketball team publicly displayed the “Winning isn’t normal” passage from WIN. The coaches read the passage to their team, hung a copy of WIN in the locker room and republished the passage on social media. Plaintiff sued Defendant for copyright infringement and the parties both filed motions for summary judgement.

The main question presented to the court was whether the publicly display of a passage from a copyrighted work in a school locker room and on the personal social media account of a school employee are fair uses.

The court reviewed the four fair use factors and concluded that Defendant’s use of WIN was a fair use. The use of the WIN passage was not transformative because it was a verbatim copying. However, the court found that the first factor still favored fair use because the use was educational and aimed to teach student athletes “lessons in good sportsmanship and fair play.” Further the court found that the use was not commercial because the Defendant did not profit from the use.

The second factor favored fair use because the passage was a mixture of fact and fiction. Also WIN had been published prior to the Defendant’s use, therefore Plaintiff’s right to control WIN’s first publication was not affected.

The third factor was neutral because Defendant copied a small portion of the WIN book, however the copied passage is the heart of the WIN book.

The court found that the fourth factor favored fair use because when a use is noncommercial, the burden of demonstrating market harm rests with the copyright holder. Beyond conclusory statements that Defendant’s uses, if widespread, would adversely impact the market for WIN, Plaintiff did not present evidence demonstrating a connection between Defendant’s uses and harm to the market for WIN’s book sales or speaking engagements.

Weighing the four factors as a whole the court concluded that Defendant’s use was protected by fair use.

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