Bell v. Moawad Grp., LLC

326 F.Supp.3d 918

Keith BELL, Plaintiff,

v.The MOAWAD GROUP, LLC and Trevor Moawad, d/b/a Moawad Consulting Group, Defendants.

No. CV-17-02109-PHX-DGC

United States District Court, D. Arizona.

Signed September 4, 2018

Kenneth Michael Motolenich-Salas, MotoSalas Law PLLC, Scottsdale, AZ, JT Morris, JT Morris Law PLLC, Austin, TX, for Plaintiff.

Shanks Leonhardt, Sanders & Parks PC, Phoenix, AZ, for Defendants.

ORDER

David G. Campbell, Senior United States District Judge

Plaintiff Keith Bell sued Defendants Trevor Moawad and the Moawad Group, LLC after they posted a passage from Plaintiff's book on their social media accounts. The parties have filed cross-motions for summary judgment. Docs. 67, 70. Defendants have also filed a motion for attorneys' fees. Doc. 64. The motions are fully briefed, and no party requests oral argument. For reasons stated below, the Court will deny Defendants' motion for summary judgment, grant in part Plaintiff's cross-motion, and deny without prejudice Defendants' motion for attorneys' fees.

I. Background.

The following facts are undisputed unless otherwise noted. Plaintiff works in the field of sports psychology and performance. In 1982, he authored and published a book titled Winning Isn't Normal . Plaintiff describes the target audience for the book as "[a]nyone who wants to perform better or out-perform the competition." Doc. 68-3 at 8.¹ Plaintiff holds a valid copyright registration for the book and continues to offer the book for sale through Amazon.com and his website, keelpublications.com. Doc. 10-1 at 6; Doc. 71-2 at 2-3; Doc. 71-8.

Defendant Moawad Group is a mental consulting firm based in Scottsdale, Arizona, owned by Trevor Moawad. The firm does business under the name Moawad Consulting Group ("MCG"). MCG maintains social media accounts with Facebook, Instagram, and Twitter. Mr. Moawad testified that MCG uses the accounts "as a way for people who followed [MCG] to get to unique insight or inspirational thought[.]" Doc. 68-4 at 4. The MCG Twitter page contains a link to MCG's website and the following description: "In the field of Mental Conditioning we work with the world's most elite talents in sport, business, military, and life to maximize their potential." Doc. 68-1 at 2.

On May 11, 2016, MCG posted an image on each of its social media accounts containing the following passage:

Winning isn't normal. That doesn't mean there's anything wrong with winning. It just isn't the norm. It's highly unusual.

Every competition has only one winner. No matter how many people are entered (not to mention those who failed to qualify), only one person wins each event.

Winning is unusual. As such, it requires unusual action.

In order to win you must do extraordinary things. You just can't be one of the crowd. The crowd doesn't win. You have to be willing to stand out and act differently. Your actions need to reflect unusual priorities and values. You have to value success more than others do. You have to want it more. Now, take note! Wanting it more is a decision you make and act upon -- not some inherent quality or burning inner drive or inspiration. And you have to make that value a priority.

You can't train like everyone else. You have to train more and train better. You can't talk like everyone else. You can't think like everyone else. You can't be too willing to join the crowd, to do what is expected, to act in a socially accepted manner, to do what's "in". You need to be willing to stand out in the crowd and consistently take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness ... because WINNING ISN'T NORMAL!!!!!

Doc. 10-1 at 24-28. The image was accompanied by the caption "Great Minds ‘Behave’ Differently." Id.

The parties agree that the passage in the image is substantially similar to language on page eight of Winning Isn't Normal . Doc. 68 ¶ 3; Doc. 71 ¶ 3; see Doc. 10-1 at 4. The image does not contain an attribution to Plaintiff or a copyright symbol or notice. Mr. Moawad testified that he found the image by conducting a Google images search on his phone using the keywords "winning is unusual." Doc. 68-4 at 5, 18. He recalled hearing this phrase many years earlier when he worked at IMG Academies in Florida. Id. at 8. He testified that he had never seen the passage before or heard of Plaintiff, and his image search did not produce any indication that the image or its contents were copyrighted. Id. at 8-9, 26-27. After finding the image, Mr. Moawad sent it to MCG employee Sean Quinn, who posted it on MCG's social media accounts. Id. at 3, 13; Doc. 68-8 at 2. Mr. Moawad thought of the caption "great minds behave differently" because it "went well with the statement winning is unusual." Id. at 6.

Defendants submit screenshots of the results produced by a Google images search for "winning is unusual" and assert that such a search continues to reveal no indication that the passage is connected to Plaintiff. Doc. 68-5. Plaintiff disputes this, asserting that Defendants' screenshots actually contain an image displaying the passage with proper attribution. Doc. 71-2 at 17. Plaintiff submits screenshots of Google searches that he performed for the same keywords, which return both images and links that immediately indicate Plaintiff's association with the phrase. Id. at 12, 14.

Defendants did not modify the image before posting it. Doc. 68-4 at 27; Doc. 68-9 at 4. Defendants estimate that the image reached about 3,500 social media accounts based on the number of "followers" MCG has. See Doc. 5-1 at 3. It also appears that the post was "shared" by at least one MCG follower who has about 100,000 followers of his own. See Doc. 71-3 at 13-16. Mr. Moawad testified that Defendants derive no income from their social media accounts, and they derived no income from posting this particular image. Doc. 68-4 at 29-30; see also Doc. 68-9 at 5-6.

Plaintiff testified that the passage displayed in the image "has proven particularly influential in the athletics and other high-performance communities[,]" and the passage "went semi-viral" in 2015 when thousands of unauthorized users posted it on various social media sites. Doc. 71-2 at 3; Doc. 68-3 at 25, 32. The passage is available to read for free on Plaintiff's website. Doc. 68-3 at 14. Plaintiff has not contacted Google or other search engines to request removal of images containing the passage, but he has pursued individual infringers. Doc. 68-3 at 33-34.

Plaintiff testified that he saw MCG's posts containing the image "within a few days." Id. at 24. On December 5, 2016, Plaintiff's counsel sent Defendants a letter notifying them that the image contained copyrighted material. Id. at 30. Defendants removed the post from each social media account immediately after receiving the letter. Doc. 68-4 at 29; Doc. 68-9 at 5.

Plaintiff asserts a claim for willful and intentional copyright infringement in violation of 17 U.S.C. §§ 106, 501. Doc. 10 at 12-13. He seeks statutory or actual damages in an amount to be proven at trial, profits attributable to the infringement pursuant to 17 U.S.C. § 504(b), attorneys' fees and costs pursuant to § 505, and injunctive relief prohibiting Defendants from further infringement. Id. Plaintiff seeks summary judgment on his infringement claim, the individual liability of Mr. Moawad, and Defendants' defenses, leaving for trial only the issue of damages. Doc. 70.

Defendants seek summary judgment on the ground that their use of the image constitutes fair use under § 107. Doc. 67 at 9-12. Alternatively, Defendants seek summary judgment on three issues, arguing that (1) Defendants did not willfully infringe, (2) Plaintiff's statutory damages should be limited to $200 because Defendants are innocent infringers who caused no actual damages, and (3) Mr. Moawad is not personally liable. Id. at 6-9, 12-14.

II. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322, 106 S.Ct. 2548. Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Discussion.

"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.’ " Loomis v. Cornish , 836 F.3d 991, 994 (9th Cir. 2016) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ).

Plaintiff presents a certificate of registration showing that he first published his book in February 1982 and registered it with the U.S. Copyright Office in September 1989. Doc. 71-8. When a copyright is registered more than five years after publication, the evidentiary weight accorded to it is "within the discretion of the court[.]" 17 U.S.C. § 410. Here, however, Defendants present no evidence or argument to dispute Plaintiff's ownership. The parties agree that Plaintiff's copyright is valid and he owns all rights in the book.

Nor do the parties dispute the second element....