Decades of Copyright Decisions Based on Rotbart v. J.R. O’Dwyer Co.

It was decided that a publisher of a newsletter did not break copyright laws after quoting/criticizing parts of a competitor’s speech in Rotbart v. J.R. O’Dwyer Co. in February 1995.[5] The controversy all began with the president of TJFR Publishing Co, honing in on the relationship between PR firms and the media members in a speech given at the national conference of the Public Relations Society of America in late 1993.

The Defendants newsletter and himself attended said speech, took extensive notes and also recorded it with a tape recorder

O’Dwyer then wrote about it in four separate articles starting late 1993 to January 1994, where Rotbart was paraphrased and quoted multiple times. Where he allegedly called his ideas the “worm’s-eye view of journalism.”[6] O’Dwyer published a total of 793 words of the speech by Rotbart and was claimed to have been selective when deciding what to report on in the over 14,000 word talk.[1]

Rotbart sued the defendant for copyright infringement in early 1994, also claiming defamation by O’Dwyer’s publication.

Ruling

Federal Judge John S. Martin issued Summary Judgment in favor of O’Dwyer Federal District Court, ruling the use of the speech in the publications was fair use under the Copyright Act and should be considered “critism, comment, (and) News reporting.”

Copyright.gov reports “The court granted defendants’ motion to dismiss, finding that defendants’ publication of articles discussing plaintiff’s public speech and defendants’ distribution of the transcripts constituted fair use. The court held that defendants’ purposes were to fairly and reasonably review, comment on, and criticize plaintiff’s speech.”[4]

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.”[3]

Why it Matters

Even though it’s undisputed O’Dwyer made some errors, Martin ruled these wouldn’t facilitate finding they were “deliberate distortions.”[2] Because this finding would of disallowed the application of the fair use exception. Judge Martin ruled Rotbart’s Speech was “de facto published”[5] for the speech was given without requirements for confidentiality to over 200 people within a public forum. He also made a note that the fair use scope becomes narrower when the work isn’t published, as was the case here.

Since the case was decided in 1995 it has been referenced dozens of times to protect the publication companies rights.

 

 

[1] – Harvard, “Rotbart v. J.R. O’Dwyer Co., Inc.”, https://h2o.law.harvard.edu/cases/5235

[2] – Reporters Committee of Freedom of the Press, “Use of speech excerpts to criticize speaker ruled “fair use” by court”, https://www.rcfp.org/use-speech-excerpts-criticize-speaker-ruled-fair-use-court/

[3] – O’Dwyers, “October 8, 2003”, https://www.odwyerpr.com/members/jack_odwyers_nl/2003/1008.htm

[4] -Copyright.gov, “Rotbart v. J.R. O’Dwyer Co., Inc., No. 94 Civ. 2091 (JSM) (S.D.N.Y. Feb. 7, 1995)”, https://www.copyright.gov/fair-use/summaries/rotbart-jrodwye-sdny1995.pdf

[5] – Hein Online, “42 J. Copyright Soc’y U.S.A. 346 (1994-1995) Judicial Developments in Literary and Artistic Property “, http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/jocoso42&section=28

[6] – West Virginia University, “English 303: Multimedia Writing: More copyright information” https://libguides.wvu.edu/c.php?g=418938&p=2854195