Robert M. Dow Jr.
Robert M. Dow Jr.

A sports psychologist who maintains a former Chicago Cubs employee retweeted a passage from his book without attribution got the go-ahead Tuesday to pursue half the counts in his copyright-infringement lawsuit.

In a written opinion, U.S. District Judge Robert M. Dow Jr. tossed two counts in Keith F. Bell’s lawsuit against Joshua Lifrak and the Chicago Cubs and allowed two others to go forward.

Lifrak was the director of the Cubs’ mental skills program through the end of last season.

Lifrak worked with the Cubs when he allegedly retweeted the so-called WIN passage from Bell’s 1982 book “Winning Isn’t Normal.”

Bell says the seven-paragraph passage is the “heart” of his book, which describes the mental attitude and strategies needed to win.

While Bell wrote the book as a guide to success in competitive swimming, he says his strategies can be applied to other sports and other nonathletic pursuits.

Bell holds separate copyright registrations for the book and the WIN passage and also owns the domain winningisntnormal.com.

In May 2016, Lifrak allegedly retweeted a tweet from the Arizona-based consulting firm Moawad Consulting Group that contained an exact copy of the WIN passage.

Lifrak’s retweet was itself retweeted at least nine times and “liked” at least 14 times, according to Bell.

He alleges Lifrak did not obtain his authorization before retweeting Moawad’s tweet and did not attribute the WIN passage to him.

Bell sued Moawad in federal court in Arizona for copyright infringement based on the original tweet. That case was settled out of court, Bell says.

Bell brought a separate suit against Lifrak and the Cubs in federal court in Chicago in April 2019. Four months later, Lifrak and the Cubs moved to dismiss the first amended complaint for failure to state a claim.

The amended complaint included a claim of direct copyright infringement against both Lifrak and the Cubs as well as claims of vicarious infringement and contributory infringement against the Cubs.

To prove direct copyright infringement, Dow wrote in his opinion, quoting JCW Investments Inc. v. Novelty Inc., 482 F.3d 910 (7th Cir. 2007), a plaintiff must show that he or she owns a valid copyright and that the defendant copied “constituent elements of the work that are original.”

Bell does not have a claim of direct infringement against the Cubs because he does not allege the club itself created a copy of the WIN passage, Dow wrote.

However, he wrote, more facts are needed before he can rule on the motion to dismiss the claim of direct copyright infringement against Lifrak.

The amended complaint alleges Lifrak created copies of the WIN passage by retweeting the Moawad tweet and that those copies “existed on servers, devices and computer systems owned or controlled by [d]efendants.”

At this stage of the litigation, Dow wrote, “the [c]ourt cannot simply rely on [d]efendants’ technological explanation of Twitter to dismiss [p]laintiff’s claim.”

Dow, however, dismissed the claim of contributory copyright infringement against the Cubs.

A defendant is liable for contributory infringement when it knows about the infringing conduct and “induces, causes or materially contributes to” that conduct, Dow wrote, quoting Marobie-FL Inc. v. National Association of Fire Equipment Distributors, 983 F. Supp. 1167 (N.D. Ill. 1997).

“The amended complaint,” he wrote, “contains no facts from which it could plausibly be inferred that the Cubs knew that Lifrak was infringing [p]laintiff’s copyright, yet failed to act to stop the infringement or willfully blinded themselves to the infringement.”

And Dow allowed Bell to proceed with his claim of vicarious copyright infringement against the Cubs.

To prove vicarious infringement, a plaintiff must show the defendant had “the right and ability to supervise the infringing conduct” and “a direct financial interest in the infringing activity,” Dow wrote, quoting Perfect 10 Inc. v. Giganews Inc., 847 F.3d 657 (9th Cir. 2017).

Bell, he wrote, alleges the Cubs had the right and ability to supervise or control Lifrak’s use of social media in connection with his position with the club.

Dow expressed doubt that Bell will be able to prove the Cubs have a financial interest in purportedly infringing Bell’s copyright.

One type of financial interest exists “where the availability of an infringing work is a contributing factor in a consumer’s decision to purchase a product or service,” Dow wrote, quoting GC2 Inc. v. International Game Technology PLC, 225 F. Supp. 3d 812 (N.D. Ill. 2017).

Bell’s theory, he wrote, “appears to be that all of 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.”

Dow set a status hearing for Feb. 20.

The case is Keith F. Bell, Ph.D. v. Chicago Cubs Baseball Club LLC, et al., No. 19 C 2386.

Bell is represented by Adam E. Urbanczyk of AU LLC.

The lead attorney for Lifrak and the Cubs is Kal K. Shah of Benesch Friedlander Coplan & Aronoff LLP.

Neither Urbanczyk nor Shah could be reached for comment.