A copyright infringement case against the Chicago Cubs baseball team, and associated sports psychologist Joshua Lifrak, will proceed in part according to a Memorandum Opinion and Order filed in Federal District Court last week. The case arose after Lifrak, who was employed by the Cubs as their Director of Mental Skills in the spring of 2016, retweeted a copyrighted portion of Keith F. Bell’s book “Winning Isn’t Normal” to his Twitter feed. As a result of the retweet, Bell filed a complaint for copyright infringement against both Lifrak and the Cubs.
While the court dismissed Bell’s contributory and direct copyright infringement claims against the Cubs, the defendants are not out of hot water yet, as Bell’s claim of vicarious copyright infringement against the team, and direct copyright infringement against Lifrak, will be allowed to proceed.
The case confronts a developing area of law related to the intersection of copyright and the viral nature of social media posts that “copy” intellectual property. The Cubs and Lifrak argue that the standard set in Flava Works, Inc. V. Gunter is controlling, therefore because Lifrak did not store the infringing text on his own server (or one belonging to the Cubs), but merely interacted with the text on Twitter, there is no direct infringement. However, the facts in Flava deal with electronic linking to copyrighted material, not sharing, “retweeting”, or “reblogging”.
The original post that Lifrak shared was posted by Moawad Group, which Bell also sued and settled with out of court in 2018. The court did offer some indication that the Cubs suit would not be as successful for Bell writing, “the Court is skeptical that Defendant will ever be able to establish knowledge of willfulness, given that the Moawad tweet did not attribute the [Winning Isn’t Normal] quote to Plaintiff”.
The remaining vicarious liability claim against the Cubs touches on a similarly murky area of law, as Lifrak posted the quote to his personal Twitter account, which Bell alleges he also used to promote his employer.
The case is set for a status hearing on February 20th.