“Winning Isn’t Normal” Author Loses at CCB

The Copyright Claims Board (CCB) has handed down a final determination in a claim filed by author Keith F. Bell. The scathing determination dismisses Bell’s claims with prejudice and stops just short of requiring him to pay the respondent’s attorney’s fees.

Bell is the author of the 1982 motivational book Winning Isn’t Normal. Though the book has been very successful, it is best known for a seven-paragraph section known as the “WIN Passage”. That passage has been widely featured as a motivational poem and has been used by a variety of schools, sports teams, and other entities.

Bell has waged a legal campaign against those who copy the WIN Passage. According to one court, Bell had filed at least 27 cases targeting over 90 alleged infringers. However, this campaign has not been very successful. Though he has secured some settlements, for the most part, courts have rejected his arguments.

This came to a head in March 2022, when the Fifth Circuit Court of Appeals upheld a lower court’s decision to dismiss one of Bell’s lawsuits. In that case, which was filed against a school district, both the lower court and the appeals court ruled that the use of the passage was a fair use.

In 2023, he decided to move his filings to the CCB, filing a series of claims there. In February 2024, Bell filed this claim with the CCB. In this claim, he targeted LinkedIn user Chris A Lews. According to Bell, Lewis infringed on his copyright by publishing the WIN passage to his account. Lewis, like many others targeted by Bell, claimed that the publication was protected under the doctrine of fair use.

The CCB agreed and handed down a strongly worded final determination, which found that Lewis’ use was a protected fair use and dismissed the claim against him with prejudice. However, it is interesting to look at how the CCB arrived at that conclusion, which delves into Bell’s history of litigation.

A Long, Long History of Litigation

The facts of the case are straightforward and largely uncontested. Lewis published the WIN Passage to his LinkedIn account. Bell only provided a screen capture of a share of the post, meaning we don’t know how many likes or shares it received.

Lewis said he believed the passage was in the public domain. However, after he received a cease-and-desist order from Bell, he removed the passage and deactivated his account. Despite his cooperation, Bell filed the claim with Lewis at the CCB on February 5, 2024. Lewis did not opt out, and the case moved forward in May.

However, the board quickly noted that this was not Bell’s first case. As part of their determination, the board examined Bell’s lengthy history of litigation. To that end, the board said, “To say that Bell has been scolded by courts for bringing such claims (as he has racked up losses) would be an understatement.”

Since Bell and Lewis are both residents of Texas, they both reside in the Fifth Circuit. As such, the board said it was bound by the March 2022 precedent. However, despite saying that a fair use finding was mandated, the CCB still performed an analysis of the four factors.

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.

The board found that the first, third and fourth factors favored Lewis, and the second factor slightly favored Bell. As such, the board agreed that the facts favored a finding of fair use. Specifically, they cited the small percentage of the original work used, roughly 1.5%, the lack of evidence of market harm and the noncommercial use.

The only win that Bell received was on the question of attorneys’ fees. Lewis had asked the board to sanction Bell, saying that the claim was filed in bad faith. However, since this was Bell’s first case before the CCB and there was a dissent in the Fifth Circuit case, they opted not to sanction him.

However, the board put Bell on notice that “moving forward with claims regarding the same WIN Passage and the same or very similar fact patterns” could result in future sanctions.

It’s a crushing defeat for Bell and will likely have a knock-on effect on the other claims he has filed with the CCB.

Reading Between the Lines

This isn’t the CCB’s first encounter with a serial litigant. However, this is the first time it has had an appeals court ruling involving one of the litigants and nearly identical facts.

The CCB made it clear that it was bound by the ruling, as both parties are from the state of Texas. However, the board performed the analysis nonetheless and ultimately agreed with the Circuit court.

As of this writing, Bell has filed 11 claims with the CCB. Seven of those claims were dismissed before they reached the active phase, and this was the first to reach a final determination. Three remain open, the most recent of which was filed in April of this year.

The board has made it very clear that he will not find a warm welcome at the CCB. His losses in federal courts compound the issue by creating a precedent that the CCB must follow. Given that, with most of his cases, the facts are very similar, the board doesn’t seem eager to relitigate the issue multiple times.

Of his open cases, none have reached the active phase, though one respondent has been served. It will be interesting to see if Bell drops these cases now that the CCB has warned him about pushing other cases with similar facts.

One of the fears surrounding the CCB was that it would become a haven for “copyright trolls” who seek to exploit the system to extort victims. That has not happened. This case illustrates why.

Even if Bell had somehow succeeded in this case, he was unable to show any financial harm. Although the CCB awards statutory damages, it bases the amount on the actual damages. As such, Bell most likely would have won just $750, the statutory minimum.

Despite its flaws, the CCB has not become a haven for problematic litigants. This case only serves to highlight further the cold welcome that such litigants receive when they attempt to bring their campaign to the CCB.

Bottom Line

My instinct is to be sympathetic toward Bell. He is an author who published a popular book, but one that has found the most success with the WIN Passage. That passage has been widely shared, often without attribution, limiting his ability to benefit from its fame.

However, the courts have repeatedly ruled that the noncommercial use of the passage on social media does not constitute infringement. Regardless of one’s opinion on that determination, there has been a broad consensus regarding it.

Yet Bell continues to push legal cases with broadly similar facts. The CCB has made it clear that’s not welcome at the board. While I share his frustration, repeated lawsuits on the same facts are not appropriate, and the CCB was right to call it out.

Hopefully, Bell will learn from this and change tack. Given how popular this passage is, I have no doubt he has more serious infringements to worry about. Much of this decision and the Fifth Circuit case hinged on the noncommercial use of the passage. Targeting commercial users would be a good first step.

Regardless, it seems unlikely that he will have much success with the CCB, at least not until the facts significantly change.