A court has delivered a partial victory to “an internationally-recognized sports psychology and performance consultant” in a case where he sued the Chicago Cubs Baseball Club and one of its employees after the employee republished excerpts of his book on social media.
The court dismissed the claim against the Cubs for contributory copyright infringement and direct copyright infringement, while allowing to continue the claims for vicarious copyright infringement and direct copyright infringement against the employee.
The plaintiff in the case is Keith F. Bell, Ph.D., who besides the aforementioned descriptor has also worked with hundreds of sports teams and spoken at “national and international coaching symposia.” At issue is one o the ten books he has written entitled “Winning Isn’t Normal.” The plaintiff holds a copyright registration for the book, which was issued by the U.S. Copyright Office on September 21, 1989 (registration number TX-0002-6726-44). The plaintiff “has and continues to promote, distribute, offer for sale, and sell numerous copies of the work.”
Defendant Joshua Lifrak “retweeted” a passage of the book, which Belle considers the “heart” of the book, on Twitter. Lifrak is employed by the Cubs as the director of its Mental Skills Program. Lifrak’s job responsibilities “include issues that generally fall within sports psychology.” At the time, relevant to this action, Lifrak maintained an active Twitter account and had more than 1,000 “followers.” Around May 2016, Lifrak allegedly posted an exact copy of the passage on his Twitter account. The print-out from Lifrak’s Twitter account, which Plaintiff attached as Exhibit C to the amended complaint, shows that Lifrak’s tweet was a “retweet” of a tweet from Moawad Consulting. The printout shows that the tweet did not attribute the passage to Bell.
The plaintiff also alleged that the Cubs are responsible for Lifrak’s Twitter activity, that Lifrak maintains the Twitter account “in the course and scope of his employment with (the) Cubs and his followers include many players and coaches” within the Cubs organization. Bell further alleges that at all relevant times, the Cubs “possessed the right and ability to supervise (Lifrak’s) infringing activity,” had “a direct financial interest in (Lifrak’s) infringing activities,” and can and should have “exercised its right and ability to supervise the activities” of Lifrak on Twitter. This allegedly impacted Bell’s business.
He asserted three claims: (1) a claim for direct copyright infringement against both defendants; (2) a claim for vicarious copyright infringement against the Cubs; and (3) a claim for contributory copyright infringement against the Cubs.
The defendants moved to dismiss, pursuant to Federal Rule 12(b)(6).
The court began by considering direct copyright infringement. “To establish copyright infringement, a plaintiff must prove two elements: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'” Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1099 (7th Cir. 2017) (quoting JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007)).
“The defendants do not challenge the plaintiff’s allegation that he holds valid copyrights to ‘Winning Isn’t Normal’ and the (the passage in question),” wrote the court. “Instead, their motion to dismiss focuses on the ‘copying’ element of the plaintiff’s copyright claim. To the extent that the plaintiff intends to bring his direct copyright infringement claim against the Cubs, that claim is dismissed because the amended complaint does not allege any facts suggesting that the Cubs created a copy of the plaintiff’s passage. Instead, the amended complaint alleges that Lifrak created the copy by ‘retweeting’ the Moawad tweet.
“Whether Lifrak himself created a ‘copy’ is a more difficult question which, ultimately, this court is unable to resolve at this early stage of the case. … the defendants argue that a retweet cannot, as a matter of law, generate an ‘actionable copy’ of copyrighted material, because ‘the instructions, storage, management, and reflection back to the original tweet all were governed exclusively by Twitter and took place exclusively on Twitter’s servers.’ … The plaintiff’s allegations may very well be wrong as a factual matter, but at this stage of the case, the court cannot simply rely on the defendants’ technological explanation of Twitter to dismiss the plaintiff’s claim.”
Turning to count 3 of the amended complaint, which alleges a claim for contributory copyright infringement against the Cubs, the court noted that “liability for contributory infringement will be imposed when a defendant, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.'” Myers v. Harold, 279 F. Supp. 3d 778, 796 (N.D. Ill. 2017) (quoting Marobie-Fl., Inc. v. National Ass’n of Fire Equip. Distribs., 983 F. Supp. 1167, 1178 (N.D. Ill. 1997)). The defendants argue that the plaintiff’s claim for contributory copyright infringement must be dismissed because, among other reasons, the plaintiff fails to allege any facts that plausibly suggest that the Cubs had any ‘knowledge of’ Lifrak’s allegedly ‘infringing activity.’ Myers, 279 F. Supp. 3d at 796. The court agrees.”
As for count 2 of the amended complaint, which alleges a claim for vicarious liability for copyright infringement against the Cubs, the court noted that to prevail “a plaintiff must establish that the defendant has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity.'” GC2 Inc. v. Int’l Game Tech. PLC, 255 F. Supp. 3d 812, 824 (N.D. Ill. 2017) (quoting Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 673 (9th Cir. 2017).
In their motion to dismiss, the defendants challenged “the sufficiency of the plaintiff’s pleading as to both the supervision element and the direct financial interest element of the vicarious liability claim. At this stage, the court is not persuaded by either argument, and therefore will allow the plaintiff’s claim for vicarious liability for copyright infringement to proceed. With that said, the court is skeptical that the plaintiff will be able to prove the second element of the claim.”
Elaborating, the court conceded that “it is not wholly implausible to presume that Lifrak’s Twitter activity is intended to promote the Cubs. At the same time, the plaintiff may find it difficult to marshal any actual evidence that Lifrak’s single retweet of the passage resulted in a direct financial gain to the Cubs or actually drew customers to the Cubs. The plaintiff’s allegations are sufficient—though just barely—to allow the contributory copyright infringement claim to proceed.”
Keith F. Bell, Ph.D. v. Chicago Cubs Baseball Club, LLC and Joshua Lifrak; N. D. Ill.; Case No. 19-cv-2386; 2/4/20
Attorneys of Record: (For Keith F. Bell, Ph.D., Plaintiff) Adam Edward Urbanczyk, AU LLC, Chicago, IL. (For Chicago Cubs Baseball Club, LLC, Joshua Lifrak, Defendants) Kalpesh K Shah, LEAD ATTORNEY, Trevor J Illes, Benesch, Friedlander, Coplan & Aronoff LLP, Chicago, IL.
