Was Melania Trump’s Plagiarism Also Copyright Infringement? (Guest Blog Post)

By Guest Blogger Tyler Ochoa

The first night of the Republican National Convention generated quite a bit of controversy, as Melania Trump was accused of plagiarizing a key passage in her speech from a similar passage in Michelle Obama’s speech at the 2008 Democratic Convention.  See NY Times, Questions Over Melania Trump’s Speech Set Off Finger-Pointing.  All but the most biased Trump supporters had to admit that the two passages were too similar to be a coincidence, and that the passage was almost certainly plagiarized. But did the plagiarism rise to the level of copyright infringement?  Almost certainly not.  Here’s why:

There is an important difference between copyright infringement and plagiarism.  Copyright infringement concerns legal liability for copying someone else’s words or original expression, but copyright does not protect ideas.  One can copy someone else’s ideas, without attribution, without any legal liability.  Plagiarism is copying someone else’s words or ideas without proper attribution. Plagiarism is a serious ethical violation, and in academia, it is grounds for disciplinary action.

Copyright Ownership

With regard to copyright infringement: it is highly unlikely that Melania Trump would be held liable for copyright infringement, for several reasons:

First, there is the question of who owns the copyright in Michelle Obama’s 2008 speech.  The initial copyright owner would the person or persons who wrote the speech.  If Michelle Obama wrote her own speech, she would be the author and the copyright owner.  But the New York Times attributes Michelle Obama’s 2008 speech to a professional speechwriter, Sarah Hurwitz, who was working for the Obama campaign.  If so, then ownership of the copyright depends on her employment status.  If Hurwitz was an employee, acting within the scope of her employment, then the speech is a work made for hire, and the copyright would be owned by the person who employed her.  [17 U.S.C. § 101(1), definition of “work made for hire”]  That might be Michelle Obama, if she herself hired her own speechwriters; but that is unlikely.  It is more likely that the employer and copyright owner would be whatever entity was formed to run Obama’s 2008 campaign.

(Aside: Hurwitz is now employed as a White House speechwriter. If she had been a government employee at the time, acting within the scope of her employment, then the speech would be a work of the U.S. Government, and by statute, such works are in the public domain.  [17 U.S.C. §105]  Anyone can copy them without legal liability. In fact, however, Hurwitz worked for the Clinton campaign in 2008, until Hillary conceded.  She was then hired by the Obama campaign.)

If Hurwitz was a freelance writer (an independent contractor), then ownership is more tricky. In general, a work written by an independent contractor is owned initially by the contractor, unless it falls within one of nine specified categories and there is a signed written agreement that the work is a work made for hire.  [17 U.S.C. § 101(2)]  The nine categories include motion pictures and other audio­visual works, and one could argue that the speech was written for the convention, and that the convention was intended to provide the content for an audiovisual work.  But unless the Obama campaign had very experienced copyright lawyers working for them, it is unlikely that they obtained a signed written agreement that specifies the work is a work made for hire.  More likely there was a general agreement that the campaign would own any speeches written for it.  If so, and such an agreement was in writing, that would be an assignment rather than a work made for hire.  (As assignment has to be in a signed writing to be valid.  [17 U.S.C. § 204]  If there was only an oral agreement, that would be a license rather than an assignment, and Hurwitz would remain the copyright owner.)  A written assignment would suffice: the Obama campaign would still be the copyright owner of the speech.  The distinction between a written assignment and a valid work for hire agreement would have consequences only many years down the road.  If it was an assignment, then the speechwriter would have a five-year window (beginning in 2043) within which to terminate the assignment and get the copyright back.  [17 U.S.C. § 203]

Finally, the speech might have been a work of joint authorship, with both Hurwitz and Michelle Obama contributing to it, in which case, they would own the copyright jointly.

Even if we can identify the proper copyright owner, that person or entity would need to register the speech with the U.S. Copyright Office before filing a lawsuit.  [17 U.S.C. § 411(a)]

Copyright Infringement

Whoever owns the copyright owner would still have to prove copyright infringement.  The act of copying is not difficult to prove; one just has to show that the alleged infringer had access to Michelle Obama’s speech (it is readily available on YouTube), and that there is enough similarity for a reasonable jury to infer that Melania’s speech was copied from Obama’s.  There is certainly enough similarity to send the issue of copying to a jury (if either side requested a jury trial). Moreover, the copying does not have to be intentional.  Under the doctrine of subconscious copying, if Melania’s speechwriter was familiar with Michelle Obama’s speech (a strong possibility, since political speechwriters probably follow one another’s work), he or she may have subconsciously copied some of those phrases into the speech without intending to.  Indeed, that is a far more likely inference than intentional copying.  The speechwriter knew that millions of people would be watching the speech; no reasonable speechwriter would intentionally copy from the well-known speech of the First Lady of the opposing party unless they wanted to embarrass Melania Trump.

But, not all copying is copyright infringement.  Even if Obama’s speech was copied, whether intentionally or unintentionally, there is liability only if there is substantial similarity of protected expression.  Copyright does not protect ideas; it only protects the original expression of those ideas.  [17 U.S.C. § 102(b)]  Anyone can copy the ideas in Obama’s speech without liability, but they are not allowed to copy the original expression of those ideas.  Separating protected expression from unprotected ideas is one of the most difficult tasks in all of copyright law.  If there is only one way to express an idea, or only a small number of ways to express an idea, then that expression is not protected by copyright, because to protect the expression would be to prevent other people from expressing the same idea.  Moreover, some expressions are considered “scenes a faire,” or clichés of the genre, and are not protected because they are too commonplace to be exclusively owned.

Consider the phrases that Melania Trump is alleged to have copied.  All of them are very simple, commonplace ideas that can be expressed in only a small number of ways:

1. you work hard for what you want in life;

2. your word is your bond and you do what you say;

3. you treat people with respect;

4. you pass these values/lessons on to the next generation;

5. Because we want our children in this nation to know that the only limit to your achievements is the strength/reach of your dreams and your willingness to work for them.

At least three of these five ideas (1,3,4) would be difficult to express in any other way, and the idea that “your word is your bond” is a commonplace one, even if it could be expressed a little differently.  The fifth is also a common idea, but there might be a little more room for creativity or variation in expressing it.

(In a different part of the speech, Trump also praised the “integrity, compassion, and intelligence” of her parents, just as Obama praised the “integrity, compassion, and intelligence” of her mother.  By itself, this could easily be a coincidence.  In combination with the other phrases, it might help slightly in proving intentional or subconscious copying. But those three qualities are also commonplace, with few synonyms, so they would not be a basis for liability.)

So, even though the ideas are very similar and are phrased almost identically, there likely would not be any liability for copying them individually, except perhaps for one sentence, which might be considered de minimis copying.  The only possible ground for copyright infringement liability would be the selection and arrangement of the same five phrases in the same order in the same paragraph. Selection and arrangement of unprotected expression can itself constitute protected expression and can be the basis for copyright infringement.  There might be enough similarity to allow the case to go to a jury, or the judge might decide that the copying was de minimis.

Fair use defense.  The Copyright Act provides that the fair use of a copyrighted work is not an infringement of copyright.  [17 U.S.C. § 107]  The amount copied here was quite small; it almost certainly would be considered a fair use if it had been copied with attribution.  Copying without attribution is usually considered unfair, but a jury would have to decide whether the copying was “fair” or not.  Because this was a political speech, it likely would be given a wider latitude than might otherwise be the case, because political speech is core speech protected by the First Amendment.  There is no independent First Amendment defense to copyright infringement, however, because the fair use defense is deemed to adequately reflect First Amendment values.

Remedies. Even if there is a small potential for liability, no reasonable copyright lawyer would bring such a lawsuit, because the remedies available would not justify the expense.  Because Obama’s speech was not registered before the alleged infringement, the copyright owner could not recover any statutory damages or attorneys’ fees.  [17 U.S.C. § 412]  Often those are the only remedies that make a copyright infringement suit worthwhile.  The only possible remedies would be an injunction (not much point, since Melania is unlikely to repeat the speech), actual damages (no economic harm to the copyright owner, so a modest license fee, at most) and the defendant’s profits (none).  It would be difficult to attribute any contributions to Trump’s campaign to the original expression in the speech, as opposed to the ideas (which are unprotected) or to political support for Trump more generally.  The political embarrassment to the Trump campaign is probably worth far more than any damages that the copyright owner could hope to recover.

Finally, in the unlikely event that there was liability, Melania could also be held liable for publicly performing the speech [17 U.S.C. § 106(4)], even if she had no idea that the speech had been copied, because copyright is a strict liability statute.

To summarize:  Was there plagiarism? Almost certainly, but it likely was subconscious plagiarism (carelessness or negligence) rather than intentional.  Did it rise to the level of copyright infringement?  Almost certainly not.

Eric’s Comment: Unlike Tyler, I’m less inclined to brush off the plagiarism as an inadvertent mistake. After all, Trump’s campaign has been a masterful work of performance art. A Trump repetition and endorsement of an Obama’s words, combined with the Rickrolling, makes no sense for anyone who aspired to political legitimacy. However, Melania’s speech does extend the performance art gloriously.