This is Why You Have an Editor: Politics, Plagiarism, and Copyright

The inescapable world of U.S. politics, especially in an election year, consistently offers much legal debate. Somewhat less often, politicians and their entourages accidentally wade into the domain of intellectual property law. Politicians have famously gotten themselves into controversies by using musical works without the artists’ permission (though, without strong moral rights in the U.S., it is typically legally sufficient that a politician just obtain a licence from a songwriter’s association). Political speeches have a long history in copyright law. However, recent events have raised another copyright issue in the political arena: plagiarism.

Melania Trump’s apparent plagiarism of a Michelle Obama speech is by no means a rarity in politics. Politicians, like so many other prominent and public figures, have a long history of copying without attribution, from student papers (which, as so many students are repeatedly warned, is grounds for expulsion) to public speeches. Though widely-publicized, did this plagiarism amount to actual copyright infringement? Political fallout aside, can this type of copying be seen in the same light as, for instance, infringement of a musical work?

The relevant textual comparison can be found in the New York Times article here.

While the speeches undoubtedly bear a fairly striking resemblance, it is not unheard of for politicians of all stripes to use similar language and rhetoric. Much as some argue there are only seven basic plots to the stories we tell, there are certain themes most, if not all, politicians employ in their speeches. Indeed, it becomes very difficult to determine what is merely inspired by or what makes use of common elements, as can be seen in the complicated cases of musical infringement, and what is actual copying. It is useful, then, to examine the issue from a legal perspective, rather than a purely sensational or popular one. It is also worth considering what the absence of moral rights in the U.S. means in this situation.

Blatant Plagiarism?

Not necessarily. Cases like this one are more likely to be tried in the court of public opinion than in a court of law. The standard for copyright infringement is considerably more stringent than mere similarities easily picked up on by observers and media. The original speech itself undoubtedly has copyright (as an original literary and dramatic work). Where political speeches especially can complicate the analysis is in the idea-expression dichotomy and in common stock elements.

Political narratives tend to hit on several major themes over and over again. For example, the story of the self-made man who rose up to run for President has endured from the times of Presidents born in log cabins to recent recounting of politicians’ “modestbeginnings. Therefore, in a copyright context, these themes and stories would not be protected – they are the common stock of political narrative. Returning to Ms. Trump and Ms. Obama’s speeches, the ideas of hard work, respect, and following your dreams are arguably unprotectable as stock elements for many political figures.

Nevertheless, the expression of those ideas remains copyright-protectable. Had Ms. Trump, then, merely borrowed these run-of-the-mill ideas for her speech, it seems unlikely anyone would even have noticed. It is in her expressive copying, however, that there is evidence of plagiarism. Like a song that copies lyrics in addition to a common pop melody, the likelihood of infringement increases when literal and expressive copying intermingle. Indeed, the question becomes not whether there was copying, but whether what was copied was a substantial part of the original work.

Since the copying was more or less verbatim (i.e. literal copying), we must consider how much was taken and how important it was. Here is where we can see why this case has become such a big deal. Ms. Trump did not just crib political talking points from Ms. Obama. She appeared to appropriate parts of her life story. And while facts and history are not protectable, even for personal histories, passing off a person’s history as your own is seen as much more egregious than borrowing their ideas. At the very least, it is easy to see how this story was a substantial part of the original speech. That the copying barely disguised the original language only makes the infringement more obvious.

Moral Rights: What If?

Because Canadian copyright includes moral rights, we might ask what role they could play in such an instance. It is easy to imagine that, given their political differences, Ms. Obama would be especially displeased with Ms. Trump’s copying of her personal story. The Copyright Act gives authors moral rights of integrity, attribution, and association in their work. There is no comparable provision in the U.S. If there were, musical artists there might frequently claim moral rights infringement where their work is used to the “prejudice of [their] honour or reputation” by its association with a cause (Copyright Act, s. 28.2(1)(b)) such as a politician with whom they disagree.

In Canada, Ms. Obama could both demand attribution for the use of her work in Ms. Trump’s speech and assert that her moral rights were infringed via the use of her work in association with a political movement with which she must certainly disagree. Of course, the concern about prejudice to her honour and reputation must be reasonable in the circumstance, though given the divisive nature of U.S. politics today, that belief would certainly seem reasonable.

Borrow Responsibly

There are undoubtedly many political lessons to be learned from Ms. Trump’s speech. Beyond the public fallout though, an examination of the issue from the perspective of copyright law is informative. It is clear that politicians are unlikely to infringe when they trot out reusable themes and archetypes – the stuff of politics for centuries. Where they will run into trouble is when they borrow from personal narratives, and more obviously, when they copy the actual expression – almost word-for-word – of those stories. Further, it becomes evident that the absence of moral rights in U.S. copyright law make it difficult for authors of many types to prevent the association of their works with causes they do not themselves support. This plagiarism scandal will likely remain in the political realm, but it is worth noting that that arena is no less immune from copyright protections than any other.

 

Sebastian Beck-Watt is the IPilogue’s Content Editor and a JD Candidate at Osgoode Hall Law School.

 

4 Comments
  1. Although the title –This is Why You Have an Editor: Politics, Plagiarism, and Copyright — mentions the word “editor,” there is not much showing “why” an editor is useful.

    The novel by Harvard undergraduate Kaavya Viswanathan ’08 went through editors who failed to note the extensive copying. Only the readers caught the problem. A similar result for a recent Civil War history. The plagiarized portion of the Ph.D. thesis of Glenn Poshard went right through a committee of “experts.”

    Of the text –She appeared to appropriate parts of her life story. And while facts and history are not protectable, even for personal histories, passing off a person’s history as your own is seen as much more egregious than borrowing their ideas. — passing off Kinnock’s life history as Joe Biden’s was especially problematic, because it was not true as to Joe Biden.

  2. As to one incident involving the academic publishing of a Civil War book, from IPBiz:

    Scott Jaschik at InsideHigherEd has more on the plagiarism issues surrounding a book by R. Fred Ruhlman published by the University of Tennessee Press. It seems that William Marvel, the plagiarized author, discovered the similarities after he was asked to review Ruhlman’s book for The Georgia Historical Quarterly.

    **One notes that the academic editors did not spot the plagiarism.

  3. Lawrence, I think that that is a fair assessment. There is nothing to guarantee that an editor of any type will catch this sort of copying. While the title is more to point out that someone should have caught something like this – and they should certainly have been looking, we can’t know if it would have been caught. I do think that in a political context this should be at the forefront of anyone proofing a speech’s mind since the bad publicity at least is not worth it. Moreover, with the wide availability of copies of a given work (such as YouTube videos of past speeches), there isn’t a good excuse not to do a thorough check (even just searching key passages on Google).

    That academic editors missed these sorts of issues is surprising in that they should have been looking, but also not shocking since it is much less likely that they would be able to find the plagiarized source (say an unpublished thesis). Ms. Obama’s speech was not obscure. That the plagiarism was found shows that it is certainly possible for aware editors to at least look for these issues.

    I would hope that this makes politicians and others more careful in future, though I won’t be surprised if it continues to happen.

  4. This is an interesting post and set of responses. May I add these random thoughts (which I confess I may well plagiarize for the next edition of my Intellectual Property Law book):

    (1) Plagiarism is not a word found in the Copyright Act, nor is it a legal term of art. The word derives from the Greek “plagion” and the Latin “plagium” for “kidnapping” but its true meaning and connotation depend very much on context. A plagiarism may amount to a civil wrong, breach of contract, IP infringement, or criminal offence – or not. It may be an institutional, professional, or occupational violation of ethical standards – or not. It may vary according to group, time and place: what Shakespeare and Dumas père commonly did without cavil with others’ work might be condemned today. It may depend on whether an appropriation is artistic or literary, or whether the context is a university’s rulebook.

    (2) One should not equate plagiarism with infringement of copyright or moral rights. The concepts may overlap but need not. Plagiarism today usually connotes dishonesty: passing off another person’s ideas or expression as one’s own, intentionally and usually to gain an advantage. Parties can by contract enlarge the notion of plagiarism as between themselves, as educational institutions often do. In doing so, however, they sometimes conflate plagiarism (the species) with misconduct (the genus).

    (3) Plagiarism is different from copyright or moral rights infringement. One may plagiarize ideas, insubstantial parts of copyright material, or even work that is out of or never had copyright; one may plagiarize even with the rights owner’s consent.

    (4) A plagiarism need not be material or relied on: the wrong is in the lie itself, not its impact. The harm is not to the true author: he or she may be indifferent, a collaborator, long dead, or may have consented to the taking or passing-off. The real harm rather is to (a) the person or institution to whom the representation of authorship or originality is made, and (b) whoever else is likely to come across it and on discovery thinks less of the plagiarist and the institution that tolerates him.

    (5) What plagiarism does is to signal unreliability, self-aggrandisement, defective character, or dishonesty. For occupations that require “fitness” to practise, these qualities mark out the plagiarist as unfit for employment, admission, or advancement. We see this in fields such as law, medicine, academia, or policing, where the aim is to protect the public, maintain standards, encourage trust, and deter cheating. Plagiarism suggests a propensity to cut corners, and cheats rarely cheat at just one thing. That is why calling someone a plagiarist is defamatory.

    (6) Some plagiarism is harmless and should not be stigmatized. I should be able to quote or ring the changes on “to be, or not to be” without having to add “my compliments to W. Shakespeare, Esq.” A certain sophistication is expected of one’s audience. Lawyers and their clients too are content to see courts plagiarize submissions in judges’ reasons for judgment.

    (7) Plagiarism is easier to commit in an era of easy electronic communication and access to information; it should be equally easier to detect. Broader based versions of anti-plagiarism software such as “Turnitin” may be needed. Unconscious copying too is more common in such an environment, but it does not follow that it should qualify as plagiarism unless parties have deliberately defined it that way in their contract. Unconscious copying suggests deficient methodology and should attract remedial education rather than the consequences that attend cheating.

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