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Bell v. Magna Times, LLC

United States District Court, D. Utah

April 29, 2019

KEITH F. BELL, Plaintiff,



         This matter is before the court on Defendants Richard Elliott and Magna Times, LLC's Motion to Dismiss [Docket No. 28]. The parties have not requested oral argument on the motion. After carefully considering the pleadings and memoranda submitted by the parties, as well as the law and facts relating to the motion, the court issues the following Memorandum Decision and Order.


         On December 20, 2015, the weekly Magna Times newspaper ran an article by reporter Richard Elliott entitled, “Cyprus Ends Football Season With Awards Banquet Last Saturday.” In the article, Elliott stated that Coach Smith introduced the theme for the 2016 football season “with a poem by Dr. Keith Bell.” The article then proceeded to print the poem, or as referred to by Dr. Bell, the “WIN Passage.” Defendants included the article in the weekly printed newspaper and posted it on the newspaper's website, Bell attached a copy of the article as it was published and posted to the website as an exhibit to his Amended Complaint.

         The “WIN Passage” is a small portion of Bell's successful 1982 book entitled “Winning Isn't Normal.” Bell is the sole author of the book and he owns all rights in the work, including the copyright registration. The book is still for sale nationally, and Bell continues to market it and protect it. The book has made Bell internationally known in sports psychology and performance. Bell has a website based on the book at the domain “” He also has a trademark in the word mark “WINNING ISN'T NORMAL, ” which he uses in connection with various goods and services.

         The Magna Times did not notify Bell that it intended to run the WIN Passage and, therefore, did not have his permission to run the passage from the copyrighted work. Two years after the article ran, Bell sent a cease and desist letter to The Magna Times in December 2017. It is unclear from Bell's Complaint whether the article was still on the website in December 2017. However, Bell alleges that the alleged infringement of his copyright and word mark occurred before, during, and after the Magna Times' change in ownership, which happened at the end of 2017.

         On July 20, 2018, Bell filed a Complaint in this court against Magna Times LLC, asserting claims for copyright infringement under the federal Copyright Act and trademark infringement under the federal Lanham Act, 15 U.S.C. § 1114(1). On August 30, 2018, Bell filed an Amended Complaint adding Richard Elliott, Emily Gould, and The Magna Times as additional defendants. Bell's Amended Complaint attaches exhibits containing his copyright registration, trademark registration, and the allegedly infringing Magna Times article.


         Defendants' Motion to Dismiss

         Defendants Richard Elliot and Magna Times LLC move the court to dismiss Bell's Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing (1) that Defendants' use of the WIN Passage in the article is protected from copyright and trademark infringement claims under the fair use doctrine and (2) that Section 727 of the federal Bankruptcy Law precludes Bell's claims against Elliott.

         1. Fair Use Doctrine

         Bell argues that Defendants cannot raise the doctrine of fair use because it is an affirmative defense that must be raised in Defendants' Answer and Defendants filed this motion to dismiss rather than an Answer. Defendants, however, raise the doctrine as part of their assertion that Bell has failed to state a claim upon which relief may be granted. Under Rule 12(b)(6), defenses must be raised as an affirmative defense in a responsive pleading, but a party may assert a failure to state a claim upon which relief can be granted “by motion.” Fed.R.Civ.P. 12(b)(6). Bell cites to no case law for his assertion that the fair use doctrine can never be considered in a motion to dismiss.

         In Brownmark Films, LLC v. Codey Partners, 682 F.3d 687 (7th Cir. 2012), the Seventh Circuit affirmed a district court's granting of a motion to dismiss on fair use grounds because all of the evidence needed to assess the defense was limited to a single act of infringement and that evidence had been provided with the complaint. Id. at 690; see also Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013) (resolution of fair use on motion to dismiss may be appropriate when the only two pieces of evidence needed to decide the issue are original work and allegedly infringing work). Because fair use is a mixed question of law and fact, Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1994), it would often be premature to determine fair use at the motion to dismiss stage. While noting this fact, the Ninth Circuit has also recognized that the fair use issue could be considered on a motion to dismiss if no material facts were in dispute. Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 530 (9th Cir. 2008).

         Therefore, while it may be uncommon, there is no absolute rule preventing a court from considering the fair use issue on a motion to dismiss. Bell could assert that the doctrine of fair use is too fact-specific to lend itself to disposition at the motion to dismiss stage, but that is not the same as making the argument that the fair use doctrine can never be raised in a 12(b)(6) motion to dismiss. Bell makes much of the fact that Defendants have not asserted the affirmative defense because they have not filed an Answer. Defendants filed the 12(b)(6) motion instead of filing an Answer. But, whenever the fair use doctrine is raised on a 12(b)(6) motion to dismiss, it would precede the defendant's assertion of the fair use doctrine as an affirmative defense in the defendant's ...

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