5th Circuit K.O.s Dr. Bell’s copyright claim

The 5th Circuit not only ruled in favor of Eagle Mountain-Saginaw ISD and against Dr. Keith Bell. It also ordered Dr. Bell to reimburse the district for the attorneys’ fees it incurred defending his claim of copyright infringement.  Here is the final paragraph of the court’s opinion:

Bell is not the typical copyright plaintiff seeking “a fair return for [his] creative labor.”  He has a long history of suing public institutions and nonprofit organizations over de minimis uses of his work.  Taking these cases into account, the district court reasonably concluded that Bell is a serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements. This case is another in the line. The school shared a single page of Bell’s work with fewer than 1,000 online followers and immediately removed the posts upon request.  Bell was unable to identify any actual financial injury associated with that use but brought suit anyway.  Attorney’s fees were thus an appropriate deterrent, both with respect to Bell and other copyright holders who might consider a similar business model of litigation.

Faced with a request for a hefty monetary settlement, EMS ISD drew a line in the dirt and agreed to fight. Just like Colonel Travis at the Alamo.  But unlike Colonel Travis, EMS ISD won.  And I’m pleased to let you know that the lawyers who led the fight for the district were my partners, Kelley Kalchthaler and Meredith Walker.

Just for your reading pleasure, I’m going to include here the Daily Dawg write up from the lower court’s decision in this case. That decision was just as decisive, but more fun to read. Enjoy.

The federal judge in the case of Bell v. Eagle Mountain Saginaw ISD had some fun writing his opinion.  He describes the plaintiff, Dr. Keith Bell, as “an infamous slugger known in federal courts around the U.S. for throwing heavy-handed hooks at non-profits and taxpayer funded school districts in the hopes that they throw in the towel and let him take the purse.”  The EMS ISD is described as “the underdog….a scrappy, counter-punching independent school district.”  The judge continues with the boxing metaphor through all 20 pages of his decision, which is best absorbed while listening to the soundtrack from Rocky.

The district won the case in a four-round knockout.  Not only that, the court ordered Dr. Bell to reimburse the district for its attorneys’ fees and costs.  Now that is a satisfying outcome. 

Dr. Bell sued the district after two district affiliated Twitter pages posted a photograph of a single page of a book he had written and copyrighted.  When informed of the issue, the district removed the posts and informed Dr. Bell that it would treat the incident as a “teachable moment.”

That did not satisfy Dr. Bell. He wanted a monetary settlement, despite the absence of any indication that these posts on obscure Twitter pages with fewer than 1000 followers had any adverse effect on book sales.  But EMS refused to throw in the towel and thus the “infamous slugger” and the “scrappy counter-puncher” ended up in a boxing ring that looked a lot like a federal court.

In the course of his opinion the judge cites two football coaches (Vince Lombardi and Bear Bryant), two presidents (Lincoln and Teddy Roosevelt), two generals (Patton and MacArthur) and one saint (Jerome).  All this comes in a section of the opinion with the heading: “Eagle Mountain breezes by Bell’s blow and delivers a devastating uppercut.”  That uppercut established that the use of Bell’s copyrighted work amounted to “fair use.”  It’s a knockout in favor of the underdog.  Rocky wins! 

But it gets better.  After the analysis of “fair use” under federal copyright law the judge notes that “This Court, like any good referee, does not tolerate unsportsmanlike conduct.”  Oops!  A football reference slips into an elaborate boxing metaphor! But let us overlook that for the moment. Let us instead appreciate Hizzoner’s laser focus on the motivation that drove this suit. 

“The issue is not that he seeks to enforce his copyright,” said the judge, “but that he seeks a disproportionate amount to settle his claims in a repulsively pungent pattern that repeats tens, if not hundreds, of times over.”  The judge cited “the plethora of lawsuits Bell has filed throughout the United States.” The “unavoidable conclusion,” according to the judge is “that Bell continues to insist on extorting public schools by abusing the Copyright Act.”   

Sheesh! The judge was hot!  And thus he ordered Dr. Bell to pay for the district’s fees and costs, noting that these sums “shall be extracted solely from Bell, not his counsel.” 

The judge was The Honorable Mark Pittman of the Northern District of Texas. The order is dated March 26, 2021.  And I’m pleased to let you know that the “devastating uppercut” was delivered by Kelley Kalchthaler, one of the shareholders in the Walsh Gallegos law firm.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Toolbox Tuesday!!