Bell v. Worthington City Sch. Dist.

KEITH BELL, Plaintiff, v. WORTHINGTON CITY SCHOOL DISTRICT, Defendant.

Case No. 2:18-cv-961

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

June 2, 2020

JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

OPINION AND ORDER

The matters before the Court are Plaintiff Keith Bell's ("Plaintiff" or "Dr. Bell") Motion for Summary Judgment (ECF Nos. 49, 50)¹ and Defendant Worthington City School District's ("Defendant" or "Worthington") Motion for Summary Judgment (ECF No. 47). The parties have responded and replied (ECF Nos. 51, 52, 55, 56). The motions are ripe for review. For the following reasons, Plaintiff's motion (ECF Nos. 49, 50) is DENIED and Defendant's Motion (ECF No. 47) is GRANTED.

Additionally, Plaintiff filed a Motion for Leave to File an Amended Complaint (ECF No. 53), and Request for Judicial Notice (ECF No. 58), and Defendant filed a Motion to Strike (ECF No. 63). The parties have responded and replied (ECF Nos. 62, 65, 68, 69, 72, 73). The motions are ripe for review. For the following reasons, Plaintiff's Motion for Leave to File an Amended Complaint (ECF No. 53) is GRANTED, Plaintiff's Request for Judicial Notice (ECF No. 58) is DENIED as moot, and Defendant's Motion to Strike (ECF No. 63) is DENIED as moot.

I.

Defendant is an Ohio public school-district. (Def.'s Resp. Pl.'s First Set Interrogs. at 2, ECF No. 47-1.) Plaintiff has been a sports performance psychologist since 2007, the president of the American Swimming Association since 2002, a swimming coach since 1996, and, together with his wife, the owner of Keel Publications ("Keel") since the early 1980s. (Bell Dep. 13:6-11, 14:21-15:2, 16:20-17:11, 19:21-20:6, Ex. 1, ECF No. 44-1.) Plaintiff writes and sells books and articles, performs speaking engagements, and consults with athletic teams. (Id. 24:5-12, 40:18-22.) Additionally, Plaintiff previously had a private sports psychology practice from 1975 through 2007. (Id. 22:5-13.)

Plaintiff wrote a series of ten books that Keel published. (Id. 28:5-8.) All ten books are copyrighted. (Id. 29:12-13.) The third book in the series is titled Winning Isn't Normal ("WIN" or "the WIN book"). (See Compl. ¶¶ 28-49, ECF No. 1.) WIN was published in 1982 and copyrighted on September 21, 1989. (Bell Dep. 52:1-49.) In addition, Plaintiff obtained a copyright for WIN's derivative work on November 6, 2017. (Id. 52:14-17.) Plaintiff obtained a trademark for WIN on November 4, 2014. (Id. 53:13-54:17.) Plaintiff asserts that somewhere between 40,000 and 80,000 copies of WIN have been sold. (Id. 57:11-13.)

WIN contains a passage which Plaintiff refers to as the heart of the book (the "WIN passage"). (Compl. ¶ 34.) The WIN passage states:

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 race only has one winner. No matter how many people are entered (mot to mention all those who tried and failed to make cuts), only one person (or one relay) wins each event.

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

In order to win, you must do extraordinary things. You cannot just 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 values and priorities. 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'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!!!

(Compl. ¶ 34.)

WIN sells as a hardcopy for $24.95, plus shipping and handling, on Amazon.com or Keel's website and as an audiobook for $9.99 on Apple or Kindle. (Bell Dep. 58:24-59:5.) The profit per book depends on the shipping and handling costs, but Plaintiff believes he makes about $25 on each book sold. (Id. 60:7-13.) Plaintiff also sells posters, t-shirts, and mugs relating to WIN and licenses for people who want to use, display, or perform WIN or related products. (Id. 67:19-22, 76:6-17, Ex. 4.) Plaintiff does not track his profit from the sales of WIN. (Id. 60:20-70:16.)

Plaintiff believes that "there are millions of copies [of the WIN passage] out there that [do not] give [him] attribution." (Id. 64:16-19.) Plaintiff keeps track of some of these uses, for example, the "crumpled paper," which is a copy of the WIN passage which was posted in a locker room of a national-champion team. (Id. 64:22-65:13.) Plaintiff states the crumpled paper was shared on the internet over two million times. (Id. 66:15-67:20.) Other infringements, however, Plaintiff does not track because "there [is] just not time to do that." (Id. 67:12-20.) Plaintiff picks and chooses whom he will send cease and desist letters to for using the WIN passage without his permission. (Id. 62:10-16, 67:21-23.)

On December 3, 2015, Worthington Kilbourne High School's ("Kilbourne") basketball coach, Tom Souder ("Coach Souder") read the WIN passage to the Kilbourne basketball team. (Id. 89:18-19; Souter Aff. ¶ 7, ECF No. 47-1.) Coach Souder attributed the passage to "Dr. Keith Bell."² (Souter Aff. ¶ 7.) Coach Souder found the WIN passage online, where it contained no intellectual property information. (Id. ¶ 8.) Coach Souder also hung a copy of the WIN passage in his athletes' locker room. (Id. ¶ 9.) The copy attributed the passage to Dr. Bell.³ (Id.) Coach Souder never attributed the WIN passage to himself. (Id. ¶ 10; Bell Dep. 99:11-19, 117:10-15, 242:24-243:5.)

When Coach Souder read the WIN passage only the Kilbourne basketball team and Brenda Kerns were present. (Bell Dep. 90:1-2.) Ms. Kerns owns a photography service called Caught My Eye Photography ("CME"). (Compl. ¶ 2.) Worthington does not employ Ms. Kerns or CME. (Bell Dep. 94:5-22.) After Coach Souder read the WIN passage to the team, Ms. Kerns posted a photo of the team on CME's website and captioned the photo with the WIN passage. (Id. 90:5-8, 93:13-23.) Under the passage, Ms. Kerns wrote "...Coach Souder." (Id. 98:15-18.)

Plaintiff alleges that Kilbourne's Basketball team has a website, www.wolvesboysbasketball.com ("the basketball website"). (Compl. ¶ 34.) Coach Souder states this website is not owned or operated by Defendant. (Souder Aff. ¶ 5.) Plaintiff contends that after Ms. Kerns posted the WIN passage on CME's website, the basketball website included a link to the passage on CME's website. (Compl. ¶ 34.) Dr. Bell could not recall any facts behind this allegation at his deposition. (See Bell Dep. 92:21-93:10, 102:3-9, 102:23-103:13.)

On July 14, 2017, Plaintiff sent Defendant a letter to cease and desist using the WIN passage. (Id. 121:10-13.) On August 7, 2017, Thomas Worthington High School's basketball coach, Sean Luzador ("Coach Luzador"), retweeted⁴ Five-Star Basketball's tweet (the "retweet"), which was the WIN passage without attribution to an author. (Id. 92:1, 16-17.) According to Plaintiff, Coach Luzader's Twitter username is "@SeanLuzader" and his description is "husband, dad, business teacher, basketball coach." (Id. 89:1-7.) As far as Plaintiff is aware, Coach Luzador's Twitter account does not include information about Defendant. (Id. 96:8-10.) Plaintiff knows that he can report infringements to Twitter. (Id. 108:8-17.) Plaintiff did not report the retweet, however, believing it would have been "a useless waste of [his] time." (Id. 109:16-110:9.)

On August 28, 2018, Dr. Bell sued Worthington and CME. (See Compl.) Dr. Bell and CME settled. (Bell Dep. 221:19-21.) Dr. Bell and Worthington filed cross motions for summary judgment, Dr. Bell filed a motion for leave to file an amended complaint, and a request for judicial notice, and Worthington filed a motion to strike. The Court will begin with the cross motions for summary judgment and will address the other motions within this discussion if they become relevant to the Court's decision.

II.

Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions" of the record which demonstrate "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The requirement that a dispute be "genuine" means that there must be more than "some metaphysical doubt as to the material facts."). Consequently, the central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury...