Bell v. Magna Times

Filing 52

MEMORANDUM DECISION AND ORDER granting Defendant Gould's 51 Motion to Dismiss. The Amended Complaint is dismissed with prejudice. Because the entity "The Magna Times" was never properly served, this ruling closes the case. Signed by Judge Dale A. Kimball on 4/7/2020. (eat)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KEITH F. BELL,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

vs.
Case No. 2:18CV497DAK
MAGNA TIMES, LLC, RICHARD
ELLIOTT, EMILY GOULD, MAGNA
TIMES,

Judge Dale A. Kimball

Defendants.

This matter is before the court on Defendant Emily Gould’s Motion to Dismiss
Complaint [Docket No. 51]. Defendant’s motion was filed February 21, 2020. Plaintiff’s
deadline for filing a response to the motion was March 20, 2020. However, as of the date of this
order, Plaintiff has not filed an opposition. Because Plaintiff has not requested an extension of
time to respond to the motion, the court takes the motion under advisement as fully briefed and
issues the following Memorandum Decision and Order.
BACKGROUND
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 included the poem, or as referred to by Dr.
Bell, the “WIN Passage.” This article was in the weekly printed newspaper and on the

newspaper’s website, www.magnatimes.com. 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 “winningisntnormal.com.” 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, in December 2017, Bell sent a cease and desist letter to The Magna Times. 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.
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On November 29, 2018, Defendants Richard Elliot and Magna Times, LLC filed a
motion to dismiss. On March 13, 2019, Plaintiff filed a motion for entry of default against Emily
Gould and Magna Times, LLC. On April 18, 2019, the Clerk of Court entered a default
certificate against Emily Gould but found that Magna Times LLC was not in default because it
had properly filed a motion to dismiss and The Magna Times had not been properly served with
the Complaint. On April 29, 2019, the court granted Defendants Magna Times LLC and Richard
Elliot’s Motion to Dismiss.
Because Bell did not move for default judgment against Emily Gould, the court issued an
Order to Show Cause why the case should not be dismissed for failure to prosecute. In response
to the court’s Order, Defendant Emily Gould filed a Motion to Set Aside Default, which the court
granted. Defendant Emily Gould then filed the current Motion to Dismiss.
DISCUSSION
Defendants’ Motion to Dismiss
Defendant Emily Gould moves to dismiss Bell’s Amended Complaint on the grounds that
she had no involvement with the newspaper at the time article ran. Although the Amended
Complaint states that Gould is the current owner and operator of The Magna Times Newspaper,
Gould states that she was a volunteer reporter and editor of the newspaper after the alleged article
ran in the newspaper and that she has never legally owned the newspaper.
Regardless of the dispute regarding ownership of the newspaper, the court has already
ruled that, accepting all of the facts pled in the Amended Complaint as true, Defendants’ use of
the WIN Passage in the article is protected from copyright and trademark infringement claims
under the fair use doctrine and Bell’s Amended Complaint fails to state a claim upon which relief
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may be granted.
As explained in the court’s previous order, the purpose of quoting the passage was news
reporting, which is one of the examples enumerated in the Copyright Act as fair use. There is no
allegation in this case that there was any kind of commercial calculation made in quoting the
passage. The WIN passage was included in the article reporting on the football team banquet
because, as the article states, the high school football coach quoted it at the banquet as a theme
for the next year’s football season. There is no allegation that the football coach’s use of the
quote was anything but fair use in the education of his student athletes. The news reporting of
that fair use was similarly not attempting to capitalize on the quote. The article quoted a small
portion of a much more substantial work that has been widely published for over thirty-five
years. Bell’s Amended Complaint does not allege that the article materially impaired the
marketability of the work. Bell’s allegations against Defendants focus almost solely on the lack
of authorization. But the article attributed the quoted material to Dr. Keith Bell and because the
quote was attributed to Bell, readers of the article were capable of searching and finding his book
and other products. Bell did not allege that he suffered a decline in requests for licenses or
assignments of his book after the article appeared. Defendants did not need to obtain a license
from Bell or pay him some sort of remuneration if their news reporting qualified as fair use.
Moreover, Bell’s Amended Complaint fails to allege that Defendants intended to cause Bell
injury or that Bell even had an injury.
The court also previously dismissed Plaintiff’s claims under the Lanham Act. To state a
claim for trademark infringement under the Lanham Act, Bell was required to show that
Defendants used the mark “in connection with any goods and services,” and that Defendants’ use
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“is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection,
or association of such person with another person, or as to the origin, sponsorship, or approval of
his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1).
However, the article, attached to Plaintiff’s Amended Complaint as Exhibit D, attributes the
quote to “Dr. Keith Bell.” Therefore, Defendants’ use of the terms “winning isn’t normal” in the
quotation is merely descriptive of Bell’s goods under the fair use doctrine and Bell’s Amended
Complaint fails on its face for failure to state a claim upon which relief may be granted.
Because the court previously found the use of the passage in the article to be fair use
under the Copyright Act and the Lanham Act, there can be no claim against Defendant Gould on
these causes of action. The court need not determine the factual dispute of whether Gould ever
legally owned the newspaper or was involved with the paper at the time the article was available
to the public. These issues are moot given the court’s decision on the fair use arguments.
Therefore, the court grants Defendant Gould’s motion to dismiss and dismisses Bell’s Amended
Complaint with prejudice.
CONCLUSION
Based on the above reasoning, Defendant Gould’s motion to dismiss [Docket No. 51] is
GRANTED and the Amended Complaint is dismissed with prejudice. Because the court the
entity “The Magna Times” was never properly served, this ruling closes the case.
DATED this 7th day of April, 2020.
BY THE COURT:

________________________________________
DALE A. KIMBALL,
United States District Judge
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