Use of speech excerpts to criticize speaker ruled "fair use" by court

02/21/95

NEW YORK — A newsletter publisher did not violate copyright laws when he quoted and criticized substantial portions of a competitor’s speech, a federal district court judge in New York City ruled in late January.

In mid-November 1993, Dean Rotbart, president of TJFR Publishing Co., spoke to the national conference of the Public Relations Society of America. His speech focused primarily on the relationship between public relations professionals and media members.

Jack O’Dwyer, editor and publisher of the weekly Jack O’Dwyer’s Newsletter and monthly O’Dwyer’s PR Services Report, attended the speech, took detailed notes and recorded it with a tape recorder.

O’Dwyer then published four articles between November 1993 and January 1994 quoting and paraphrasing Rotbart, and calling his ideas “bilge” and a “worm’s-eye view of journalism.” In total, O’Dwyer published 793 words of Rotbart’s more than 14,000-word talk.

In March of 1994, Rotbart sued O’Dwyer for copyright infringement. He also claimed he was defamed by the publication which included several errors.

In granting a motion for summary judgment, federal District Court Judge John S. Martin, Jr. ruled O’Dwyer’s use of the Rotbart speech was fair use under the Copyright Act and consisted of “criticism, comment, (and) news reporting.”

Although it was undisputed that O’Dwyer made errors, Martin ruled those errors would not support a finding that they were “deliberate distortions.” Such a finding would disallow application of the fair use exception.

The judge also ruled that Rotbart’s speech had been “de facto published,” because the presentation was delivered without requirements of confidentiality to more than 200 people in a public forum. The court noted that the scope of fair use is narrower if the work is unpublished. (Rotbart v. J.R. O’Dwyer Co.; Media Counsel: Victor A. Kovner, New York)

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.