District court grants in part motion to dismiss contributory infringement claim against Chicago Cubs and director of Cubs Mental Skills Program based on retweet that allegedly copied key passage from plaintiff’s book.

Dr. Keith F. Bell, a sports psychologist and performance consultant, sued the Chicago Cubs and Joshua Lifrak, the director of the Cubs’ Mental Skills Program, for copyright infringement, alleging that the Cubs and Lifrak infringed Bell’s copyrights in his 1982 book titled Winning Isn’t Normal and in particular a certain key passage, known as the WIN passage. As the holder of copyright registrations in both the book and the WIN passage, Bell alleged claims for direct infringement against the Cubs and Lifrak, contributory infringement against the Cubs based on Lifrak’s retweet of the WIN passage on Twitter, and vicarious infringement against the Cubs. Lifrak’s retweet allegedly posted an exact copy of the WIN passage based on a tweet from a nonparty that Lifrak had already sued.

Defendants moved to dismiss, which the court granted in part. Regarding the direct infringement claim, the Cubs and Lifrak challenged the notion that they had “copied” Lifrak’s copyright—they argued that no such copy was created by retweeting. While the court dismissed the claim against the Cubs because there were no allegations suggesting the organization copied the WIN passage, the question of whether Lifrak created a copy was found to be unresolvable on a motion to dismiss. To support his position that he did not create a copy, Lifrak argued that the instructions, storage, management and reflection back to the original tweet took place exclusively on Twitter’s servers. To that end, Lifrak requested that the court take judicial notice of how a retweet works, but the court refused to do so, reasoning that it was not clear that “web-based explanations” constituted “public records” appropriate for judicial notice. Accordingly, the court permitted the direct infringement claim to proceed against Lifrak.

As for plaintiff’s secondary liability claims, the court granted the Cubs’ motion to dismiss the contributory infringement claim but denied the motion to dismiss the vicarious infringement claim. Fatal to Bell’s claim was the absence of any factual allegations necessary to meet the “knowledge” requirement of contributory copyright infringement. The court found that there was nothing to suggest that the Cubs had any knowledge of Lifrak’s allegedly infringing retweet. Nor were there any allegations that the Cubs or Lifrak knew the retweet infringed Bell’s WIN passage.

Turning to the vicarious infringement claim, which requires the right and ability to supervise the infringing conduct, as well as a direct financial interest in the infringing activity, the court held that Bell’s allegations were sufficient “though just barely” to allow the vicarious infringement claim to proceed. On the supervision element, the court found that Bell adequately alleged that the Cubs had the right and ability to supervise Lifrak’s use of social media accounts on which the purported infringement took place. As for the financial interest element, the Cubs unsuccessfully argued that the amended complaint failed to identify any financial benefit that inured to the Cubs as a result of Lifrak’s tweet. Because Bell’s theory was based on the notion that all of Lifrak’s tweets increased the Cubs’ exposure and encouraged his followers to either attend games or purchase Cubs apparel or merchandise, the court concluded it was “not wholly implausible” to assume that Lifrak’s Twitter account—which prominently featured an image of Wrigley Field and displayed his title—was intended to promote the Cubs.

Finally, the Cubs and Lifrak argued that the court should dismiss allegations of willful and intentional infringement. Defendants contended that Bell failed to allege that either the Cubs or Lifrak knew the tweet of the WIN passage contained copyrighted material. The court agreed with Bell, however, finding that his claims were not subject to dismissal based on a lack of factual detail supporting his allegation of willfulness. Nevertheless, the court warned Bell about his ability to establish knowledge on the part of the Cubs given that the original tweet did not even attribute the WIN passage to him.