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.
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’ “modest” beginnings. 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.
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.