United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED February 25, 2022 No. 21-10504 Lyle W. Cayce Clerk Doctor Keith Bell,

Plaintiff—Appellant,

versus

Eagle Mountain Saginaw Independent School District,

Defendant—Appellee.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-1157

Before King, Costa, and Willett, Circuit Judges. Gregg Costa, Circuit Judge: Just as famous as some great upsets in sports history are the motivational speeches that inspired them. Knute Rockne, in a speech immortalized in film by a future President, asked his Notre Dame players at halftime to “win one for the Gipper.” They did just that, rallying to beat an undefeated Army. See Knute Rockne: All American (Warner Bros. 1940). Herb Brooks convinced a group of American college players that for one night they could be “the greatest hockey team in the world.” They were, defeating the mighty Soviets in the Miracle on Ice. See Miracle (Walt Disney Pictures 2004). Case: 21-10504 Document: 00516218265 Page: 2 Date Filed: 02/25/2022

No. 21-10504

Technology now allows inspirational messages to be conveyed not only in the locker room but also on social media. The softball team and flag corps at a public high school outside Fort Worth used their Twitter accounts to post a motivational passage from sports psychologist Keith Bell’s book, Winning Isn’t Normal. We do not know if the tweets motivated the students to perform at a higher level. We do know that the tweets resulted in Bell’s suing the school district for copyright infringement. We must decide if the tweets were a fair use of the copyright that bars this suit. I In 1982, Bell published Winning Isn’t Normal, a 72-page book that provides strategies for success in athletics. Bell continues to market and sell Winning Isn’t Normal through online retailers and his personal website, where he also offers merchandise, including t-shirts and posters that display the passage that was quoted in the tweets. That passage, which Bell calls the WIN Passage, is separately copyrighted. Bell offers licenses for its use. The passage reads: Winning isn’t normal. That doesn’t mean there’s anything wrong with winning. It just isn’t the norm. It is highly unusual. Every competition only has one winner. No matter how many people are entered, only one person or one team wins each event. Winning is unusual. And as such, it requires unusual action. In order to win, you must do extraordinary things. You can’t 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

2 Case: 21-10504 Document: 00