United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
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.
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. 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.
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.
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
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.”
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.
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
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.
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.
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.
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.
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.
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 (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. 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 (1986).
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 (1991)).
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.
the parties dispute the second element. Defendants admit that
the passage in the image is substantially similar to original
language in Plaintiff's book, and they admit that they
publicly posted it on MCG's social media accounts.
Indeed, neither Defendants' motion nor their response to
Plaintiff's motion even addresses these elements.
has shown, as a matter of undisputed fact, that he owns a
valid copyright in the book and Defendants copied and
published constituent elements of the book that are original.
Plaintiff is therefore entitled to judgment on his copyright
infringement claim, unless Defendants can establish fair use
or another defense.
Copyright Act provides that “the fair use of a
copyrighted work . . . for purposes such as criticism,
comment, news reporting, teaching[, ] . . . scholarship, or
research, is not an infringement of copyright.” 17
U.S.C. § 107. “The fair use doctrine
‘permits and requires courts to avoid rigid application
of the copyright statute when, on occasion, it would stifle
the very creativity which that law is designed to
foster.'” Seltzer v. Green Day, Inc., 725
F.3d 1170, 1175 (9th Cir. 2013) (quoting Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994)). In
determining whether the use in this case is “fair,
” the Court must consider four statutory factors:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for ...