If You Find it on the Internet, Unattributed, Anyone Can Use it, Right?

Trevor Moawad runs a consulting group called…. The Moawad Consulting Group. It’s a “mental consulting firm,” which is, I don’t know what it is. Here’s how they describe what they do: “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.” Anyway, you can try to book Mr. Moawad, but bear in mind that he only works with “the world’s most elite talents.”1Then again, who knows? Maybe you are! You’re reading this blog, aren’t you?

Mr. Moawad came across the most awesome passage about mental conditioning. He was thinking about how he once heard someone say that winning was unusual, so he punched “winning is unusual” into Google image search engine, and there it was, many times over: the most awesome passage about winning.

Results after several weeks of mental conditioning.

The passage begins like this: “Winning isn’t normal. That doesn’t mean there is anything wrong with winning. It just isn’t normal. It’s highly unusual.” It ends like this: “If you want to win, you need to accept the risks and perhaps the loneliness … because winning isn’t normal!” In between, it makes the following insightful points:

  • There are many more non-winners than winners because there are many competitors but only one winner. Math rules.
  • To be a winner, you must be do extraordinary things. Non-winners are ordinary, so by definition, winners are extraordinary. And if you’re going to do extraordinary things, you cannot be ordinary (e.g., you can’t “just be one of the crowd”).
  • To be a winner, you have “value success more than others do,” on the theory that you’re not likely to get and keep things you don’t value.
  • But to value success is a choice, not an inherent quality. (This appears to be the main point.)
  • But to achieve winning, you might have to be weird (“You can’t be too willing … to act in a socially accepted manner…”), because, as noted above, winning isn’t normal.

I know what you’re thinking. You’re thinking these points are trite. And, while living intentionally is a good thing, choosing to win won’t, by itself, lead to winning, if you’re lacking adequate resources, etc. Well, you’re not a mental conditioner. And to a mental conditioner, this passage gets at the very essence of mental conditioning.

So, the good mental conditioner that he is, Mr. Moawad recognized this quote for what it is. It’s not clear where he found it, but it’s all over the place on the Internet, like here, here and even here. Wherever he found it, it was unattributed, like a folk saying. After all, most images show it on a weathered piece of paper pinned somewhere, like a locker room. It’s probably just something that’s been going around for a while.

Winning Might Not Be Unusual, but Copyright Infringement Isn’t.

It’s too bad Mr. Moawad didn’t find the quote here, here, or here. If he had, he might have realized that Dr. Keith Bell wrote that quote and, further, that he claims copyright in it. With some more digging, Mr. Moawad might’ve learned that the quote comes from a book Dr. Bell wrote, called… wait for it… Winning Isn’t Normal, written in 1982, and described by Amazon as a “timeless bestseller.”2I notice that no one takes credit for the illustrations.

Dr. Bell is an “internationally recognized expert in sports psychology and performance enhancement.” He writes about competitive swimming, but his books are, he says, applicable to anyone. It’s possible that Dr. Bell and Mr. Moawad are competitors, at least obliquely.

But Mr. Moawad was completely ignorant of Dr. Bell, or that Dr. Bell wrote this famous passage. Mr. Moawad was so inspired by the passage that he instructed his social media manager to post the image with the quote on all Moawad Consulting Group’s social media accounts, with the caption, “Great minds behave differently.”
Dr. Bell has become pretty famous for this passage. And he’s pretty proud of it. You can read it on his own website (according to the court opinion—I can’t find it on his website, except on merchandise he sells).

Dr. Bell found out about Moawad Consulting Group’s use of the passage. He got his lawyer to send a letter to Mr. Moawad that “the image contained copyrighted material.” Mr. Moawad immediately had the images removed from the social media accounts. Dr. Bell sued Moawad Consulting Group and Mr. Moawad, anyway.

The defendants (Moawad Consulting Group and Mr. Moawad) argued that their use was fair use. They moved for summary judgment on the issue. How do you think the court ruled?

Before you answer, take a minute to review the fair-use factors. While you’re there, you’ll notice that not too long ago, we had another “I found it on the internet” fair use case. In that case, the promoter of a festival used a professional photograph of a neighborhood the promoter wanted to feature on his website. Although hardly any factors favored fair use, the court found fair use anyway. The court inexplicably found the use was transformative (it wasn’t), non-commercial (it wasn’t), used in good faith (irrelevant), didn’t use the whole thing (but it used nearly the whole thing), and couldn’t have hurt the market for the photograph because the photographer hadn’t sold very many copies (irrelevant). The court also found the photograph wasn’t very expressive (all-too-typical bias against photography). Finally, the court found the publication of the photograph to weigh in favor of fair use (even though that is contrary to law).3I believe the decision is being appealed, and the smart money is on reversal.

I bring this up because, obviously, lightning wouldn’t strike twice.

Now, how about a bonus question? The plaintiff moved for summary judgment on the issue of whether Mr. Moawad should be personally liable for the infringement. He had been arguing that, as an officer of his company, he is shielded from copyright infringement for infringing acts he took on his company’s behalf. I’ve blogged about this issue a couple of times.

Make you guesses and click here for the answers!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.

    Footnotes   [ + ]

    1. Then again, who knows? Maybe you are! You’re reading this blog, aren’t you?
    2. I notice that no one takes credit for the illustrations.
    3. I believe the decision is being appealed, and the smart money is on reversal.