Oregon State Bar Bulletin — MAY 2013


Inquiry of the Month

As one does, from time to time I hire a court reporter to record and transcribe a deposition. That is a professional service that I appreciate receiving. When the reporter’s bill for services arrives, I pay it promptly.

I am occasionally asked by other parties to hand over a photocopy of the transcript. While there are, indeed, some circumstances in which it is proper to wear white shoes before Memorial Day, is it ever proper to give out a copy of the reporter’s work product? Is there a “fair use” exception for transcripts?

Roderick A. Boutin, Lake Oswego

Editor’s note: Good question. We turned to Portland intellectual property lawyer Leonard DuBoff to offer some insight on the topic. He writes:

Mr. Boutin’s question is extremely interesting and one which virtually every attorney who is involved in litigation is likely to ask. The answer is by no means obvious.

The only case addressing whether a court reporter can claim copyright in a transcript of testimony held that the court reporter does not have a copyright in the transcript since the court reporter cannot claim any originality in the work, having only transcribed verbatim what the person testifying said. The copyright law requires there to be originality in any work on which a copyright is claimed. Lipman v. Massachusetts, 475 F.2d 565 (1st Cir. 1973).

Copyright, however, may not be the only issue. This case also considered the plaintiff’s claim of a contract right. The court reporter, having no written contract, relied on the custom of allowing court reporters to sell transcript copies. The Court went into some detail about the specifics of the custom in Massachusetts before reaching the conclusion that the court reporter should receive payment only for copies the defendant sold to parties to the litigation. It would, therefore, be wise to determine whether the attorney contracting with the court reporter had any agreement — express or implied — about whether copies must be purchased through the court reporter.

It would also make some sense for court reporters to have written contracts with the attorneys they deal with in order to avoid this ambiguity and in order to clarify permissible uses of the transcript.

A related question is whether the witnesses and lawyers quoted in the transcript may have a copyright in their testimony. This is an unsettled area of the law since there are no cases on point, though case law has indicated that it may be possible for spoken words to be protected by copyright. “Assuming, without deciding, that in a proper case a common-law copyright in certain limited kinds of spoken dialogue might be recognized, it would, at the very least, be required that the speaker indicate that he intended to mark off the utterance in question from the ordinary stream of speech, that he meant to adopt it as a unique statement and that he wished to exercise control over its publication.”

The court held that in that particular case, the question was moot since Ernest Hemingway had obviously permitted the defendant to publish materials from their conversations. Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341 (1968).

While Section 301 of the Copyright Revision Act of 1976, as amended, preempts the area of copyright and there is no longer a common-law copyright, it is likely that the Hemingway case remains good law even under the current statute.

Given the Hemingway decision, it’s unlikely that a witness’s testimony would ever be found to be protected by copyright, but what about the lawyer’s questions? The lawyer may well have typed up his or her questions prior to the deposition. Those written notes would probably be protectable by copyright. Could unauthorized reproductions of the transcript be an infringement of the lawyer’s copyright? This, too, is an unsettled area of the law, though a 1969 California decision awarded a professor damages when a company sold notes based on his university lectures. Williams v. Weisser, 273 Cal. App. 2d 726 (1969). While this case also predates the current copyright statute, it too is likely still good law.

As noted above, it would be best for both attorneys and court reporters to have a written contract so as to avoid the ambiguities which currently exist.

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