Infringement by ReTweet?

When you retweet - using functionality built into Twitter's platform that is fundamental to how Twitter works - can you be held responsible for copyright infringement if it turns out that the original tweet, unbeknownst to you, included infringing content? A case pending in Chicago raises precisely this question.

Plaintiff Keith F. Bell, Ph.D. is an athlete, coach, "internationally-recognized sports psychology and performance consultant," and the author of over ten books, including Winning Isn’t Normal, which was first published in 1982. Plaintiff also sells posters, t-shirts and other merchandise (check out his website) that displays a 241-word passage from the book (the "WIN Passage"), which Plaintiff describes as "the heart" of Winning Isn't Normal. 

Defendant Joshua Lifrak is employed by the Chicago Cubs as the director of its Mental Skills Program. In May 2016, Lifrak retweeted a tweet, initially posted by a non-party to the lawsuit, that included the WIN Passage in its entirety. Approximately 1000 people follow Lifrak on Twitter, and Lifrak's retweet was liked 14 times and retweeted 5 times. Suffice to say, Lifrak didn't break the internet a la Beyoncé. Not even close. 

Nevertheless, plaintiff sued Lifrak, alleging that the publication of Lifrak’s retweet infringed upon his copyright. Plaintiff also sued the Cubs on the theory that Lifrak's Twitter activities fell within scope of his employment and were intended to "provide economic benefit to Defendant Cubs and himself." Plaintiff asserts claims for direct copyright infringement against both defendants and claims for vicarious and contributory copyright infringement against the Cubs. Defendants moved to dismiss the complaint under Rule 12(b)(6). The court granted the motion in part, and denied it in part. Here's a quick rundown.

Direct Copyright Infringement

To prove copyright infringement, the plaintiff must prove that (1) he owns the copyright in the Winning Isn't Normal (and the Win Passage) (which was undisputed here) and (2) the defendants copied elements of the plaintiff's work that are protectable under copyright law. In support of their motion to dismiss, defendants argued that a retweet cannot, as a matter of law, give rise to a claim for direct copyright infringement because the act of retweeting does not result in the creation of a new copy of the original tweet; instead, it results in the creation of a link to the location of the original tweet on Twitter's server where it was posted by the original Twitter user. In other words, the defendants urged the court to apply the so-called "Server Test" and cited as support Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012) (embedding a video link on a website does not give rise to a claim for direct infringement - at least of the reproduction and distribution rights - because it does not involve the creation of a new copy of the video) and Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, 2014 WL 3368893 (N.D. Ill. July 8, 2014) (no claim for direct infringement existed when the defendant's website linked to plaintiff’s copyrighted photo on the plaintiff's website without creating a new copy of the photo). But see Goldman v. Breitbart News Network, 302 F. Supp. 3d 585 (S.D.N.Y. 2018) (embedding tweet with copyrighted photo of Tom Brady on defendant's website violates the display right of the copyright owner even if the photo was hosted on a server owned and operated by Twitter and not defendant). 

Assuming, without deciding, that the defendant's legal position was correct, the court nevertheless refused to dismiss the direct infringement claim against Lifrak because the defendants' arguments rested on facts that were inconsistent with the allegations in the complaint. In his complaint, the plaintiff specifically had alleged that Lifrak's act of retweeting resulted in "actual copies of Winning Isn’t Normal [being] made ... on servers, devices, and computer systems owned or controlled by Defendants." The court noted that the plaintiff's "allegations may very well be wrong as a factual matter," and it invited the defendants to move for summary judgment in the future "if and when Defendants generate a factual record to support their contention that judgment in their favor as a matter of law is appropriate." But for purposes of a 12(b)(6) motion, the court concluded that plaintiffs' allegations were sufficient to proceed.

The court did dismiss the direct infringement claim against the Cubs because the complaint did not allege any facts suggesting that the Cubs themselves copied the WIN Passage. 

Contributory Copyright Infringement

The court dismissed the count for contributory copyright infringement against the Cubs. To prove contributory copyright infringement, a plaintiff must show that the defendant "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." The knowledge element can be met when a defendant has been notified of specific infringing acts and fails to act to prevent future infringing acts, or when a defendant willfully blinds itself to such infringing acts. Here, the complaint contained no facts from which it plausibly could be inferred that the Cubs knew that Lifrak was committing the allegedly infringing act or that the Cubs willfully blinded itself to Lifrak's alleged infringement.

Vicarious Copyright Infringement

The court denied the motion to dismiss the count against the Cubs alleging vicarious copyright infringement. To prove vicarious copyright infringement, a plaintiff must establish that the defendant has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity. The court found that plaintiff had adequately alleged in the complaint facts to support both elements. With respect to the financial benefit element, the plaintiff's theory was that Lifrak’s tweets "increase the exposure of the Cubs and encourage Lifrak’s followers to buy services and products from the Cubs, such as tickets to baseball games or Cubs-licensed apparel and other items." The defendant disputed that Lifrak's retweet could possibly have resulted in ticket or merchandise sales, since the retweet in question didn't promote or even mention the Cubs. The court was openly skeptical that the plaintiff ultimately would be able to "marshal any actual evidence that Lifrak’s single retweet of the WIN passage resulted in a direct financial gain to the Cubs or actually drew customers to the Cubs." Nevertheless, because the retweet in question did identify Lifrak's official position with the Cubs, and Lifrak's Twitter page featured a photo of the Cubs’ sign at Wrigley Field, the court found that the allegations in the plaintiff's complaint were sufficient - even if (in the court's words) "barely" so -  to allow the claim proceed.

Willful and Intentional Conduct (and Possibly a Warning from the Court?)

Finally, the court denied defendants' motion to dismiss the allegations in the complaint that the defendants' infringement was willful, holding that willfulness is not an element of infringement but instead goes to the question of whether plaintiff would be entitled to enhanced damages, assuming he proves liability. But in so doing, the court issued something of a warning to the plaintiff:

Nonetheless, the Court agrees with Defendants that there is nothing in the amended complaint to suggest that either Defendant had any idea that the [original] tweet contained copyrighted material. Further, the Court is skeptical that [Plaintiff] will ever be able to establish knowledge or willfulness, given that the [original] tweet did not attribute the WIN quote to Plaintiff. While this is not a basis for dismissing the complaint, it is certainly something for Plaintiff to keep in mind in considering how much of his own resources to sink into this case, as he will need evidentiary support for any claim to more than the $200 minimum statutory damages available under 17 U.S.C. § 504(c)(2).

Here, the court appears to assume that the plaintiff will elect to seek statutory damages in lieu of actual damages. I do not know whether there is a basis for this assumption. A plaintiff is permitted to elect statutory damages "at any time before final judgment is rendered," and it strikes me as early in the case for the plaintiff to have made such an election. In any event, § 504 permits recovery of statutory damages between $750 and $30,000 per work infringed, with the ceiling increasing up to $150,000 if the infringement is willful (which the court clearly believes is unlikely here). Section 504(c)(2) - the specific section cited by the court - provides that a statutory damage award can be reduced to $200 if the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." The court appears to be urging the plaintiff to consider that one possible outcome here would be a measly $200 damage award, since the defendants may have been innocent infringers. I can't imagine that the plaintiff will be very happy if all he has to show for his efforts is two Benjamins.

Bell v. Chicago Cubs Baseball Club, LLC, Case No. 19-cv-2386, 2020 WL 550605 (N.D. Ill. Feb. 4, 2020)