Full Count: Retweet Copyright Dispute Against Cubs Moves Forward

Advertising Law

Can a retweet violate copyright? An Illinois court reached a mixed decision on the issue.

In 1981, Dr. Keith Bell authored the book Winning Isn’t Normal. He holds a copyright registration and creates, markets and sells works derivative of the book such as posters and T-shirts that display a specific 241-word passage that Bell characterizes as “the heart” of the book.

Joshua Lifrak, director of the Chicago Cubs’ Mental Skills Program, retweeted an exact copy of the 241-word passage in May 2016. The original tweet was posted by Moawad Consulting and did not attribute the passage to Bell. Lifrak’s retweet was liked at least 14 times and retweeted an additional nine times by Lifrak’s approximately 1,000 followers.

Bell filed a copyright suit against Lifrak and the Cubs. He asserted three claims: direct copyright infringement against both defendants, vicarious copyright infringement against the Cubs and contributory copyright infringement against the Cubs.

U.S. District Court Judge Robert M. Dow Jr. granted the defendants’ motion to dismiss the claims for contributory copyright infringement and direct copyright infringement against the Cubs, but allowed the claims for vicarious infringement against the Cubs and for direct infringement against Lifrak to move forward.

Considering the direct infringement claim, the court quickly dismissed the claim against the Cubs because the complaint did not “allege any facts suggesting that ‘the Cubs’ themselves created a copy” of the passage at issue. The court, however, said the question of whether Lifrak created a “copy” was a question it was “unable to resolve at this early stage of the case.”

While the defendants argued that a retweet cannot generate an “actionable copy” of the copyrighted material because the storage and management of the material were governed exclusively by Twitter and took place on Twitter’s servers, the court said the facts remained in dispute because Bell insisted that the Cubs’ server kept an actual copy of the material.

“Plaintiff’s allegations may very well be wrong as a factual matter, but at this stage of the case, the court cannot simply rely on defendants’ technological explanation of Twitter to dismiss plaintiff’s claim,” Judge Dow wrote.

The court then considered the issue of whether the Cubs were liable for contributory copyright infringement. The defendants argued that liability for contributory infringement requires the Cubs’ knowledge of Lifrak’s infringing activity and the plaintiff did not “allege any facts that plausibly suggest” such knowledge.

The court agreed, stating that there was “no apparent way the Cubs (or Lifrak, for that matter) would have known that Lifrak’s retweet infringed Plaintiff’s copyright.”

As for the vicarious infringement claim, which requires the plaintiff to establish that the defendant has the right and ability to supervise the infringing conduct as well as a direct financial interest in the infringing activity, the court found the allegations in the complaint sufficient to survive a motion to dismiss but expressed skepticism that Bell would be able to prove the financial interest requirement.

Bell argued Lifrak’s tweets increased the exposure of the Cubs and encouraged Lifrak’s followers to buy services and products from the team, such as tickets to games or Cubs-licensed apparel. The defendants objected to this theory, but Judge Dow did not think it was “wholly implausible to presume that Lifrak’s Twitter activity is intended to promote the Cubs.”

The court noted, however, that Bell “may find it difficult to marshal any actual evidence that Lifrak’s single retweet of [the passage] resulted in a direct financial gain to the Cubs or actually drew customers to the Cubs.”

To read the memorandum opinion and order in Bell v. Chicago Cubs Baseball Club, click here.

Why it matters: Although the court kept some of the plaintiff’s claims alive, it appeared doubtful about the plaintiff’s ability to ultimately succeed on his claims, encouraging the plaintiff to consider “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.” Even if the defendants cannot factually establish that no actual copy is made when a post is retweeted, the fact that the defendants had no knowledge of the infringing activity considerably weakens the plaintiff’s case and the possibility for a meaningful result in the plaintiff’s favor.



pursuant to New York DR 2-101(f)

© 2023 Manatt, Phelps & Phillips, LLP.

All rights reserved