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July 19 — Amid the debate raging over whether some of Melania Trump's Republican National Convention speech was cribbed from a 2008 Michelle Obama address, there's an overlooked legal question: whether there wasn't just copying, but copyright infringement.
Presumptive Republican presidential nominee Donald J. Trump's campaign has denied any intentional plagiarism by Melania Trump, according to Bloomberg News. Aside from the plagiarism allegations, though, is the infringement question — and that's a much tougher one to answer, legal experts say.
“It is almost certainly plagiarism,” Mark A. Lemley, a law professor at Leland Stanford Jr. University and an intellectual property scholar, told Bloomberg BNA in an e-mail message. “Whether it is copyright infringement is a harder question.”
The difference between plagiarism and copyright infringement is important when considering whether Trump's speech could give rise to a successful legal action.
Plagiarism is a standard for giving credit to the work of others created and policed by educational institutions, and other sources of societal norms. Copying someone's ideas without attribution, as well as copying his or her words, can give rise to a charge of plagiarism.
Unlike plagiarism, copyright law doesn't turn on the question of giving credit. And, unlike plagiarism, it protects only specific expression, not ideas.
Applying the standards of copyright law to Melania Trump's speech would bring into play several very close questions, scholars and practitioners told Bloomberg BNA.
One of the first questions to ask would be who exactly would hold any copyright in Obama's 2008 speech.
Scott Austin, a copyright lawyer with the VLP Law Group LLP, Fort Lauderdale, Fla., said that a federal government employee speaking within the scope of his or her employment can't claim copyright in a speech.
So, a court would have to decide whether Michelle Obama, as the wife of a then-senator running for president, was a government employee and whether speaking at the 2008 Democratic National Convention was part of her job duties. The same would go for any speech writers who worked on the address.
“It is likely that Michelle had help writing the speech,” Roger Schechter, a copyright law professor at George Washington University, told Bloomberg BNA. “The copyright in any particular passage would presumptively belong to the person who penned that passage unless the work was a work made for hire.”
Schechter guessed that the ultimate owner of the copyright would be President Barack Obama, because it was his campaign that employed the speech writers for Michelle Obama's 2008 address.
Every once in a while, political candidates have to confront allegations that a political speech has been cribbed from somewhere.
It happened to Vice President Joe Biden, when he ran for president in the 1988 campaign and critics said he used a quote from British politician Neil Kinnock without attribution.
It happened when Sen. Scott Brown (R-Mass.) gave a speech in an unsuccessful re-election bid in the 2012 election and parts of a speech were allegedly taken from an old speech by former Sen. Elizabeth Dole (R-N.C.).
It even happened to President Obama during the 2008 campaign, when Hillary Clinton accused him of copying part of a speech by Massachusetts Gov. Deval Patrick (D).
Sen. Rand Paul (R-Ky.) was accused in 2013 of giving a speech that copied material from the Wikipedia description of the 1997 movie “Gattaca.”
Assuming one figured who — Michelle Obama herself, her husband, a speechwriter or the Obama re-election campaign, as the speechwriter's employer — held the rights, the question would become whether the speech qualified for protection as an original and creative work of expression fixed in a perceivable medium.
The fixation part would be easy, because Obama's speech was presumably written down and it was also recorded on video and audio.
The next question would be whether it could be proven that Trump or her speech writers actually copied from Obama's speech. Finding evidence for actual copying might be difficult, but it could be bypassed assuming that the Obama speech was easily available to them and that the Trump speech was “strikingly similar” to the 2008 speech.
“There are several verbatim or near-verbatim quotes,” Lemley said. “Short phrases and stock language won't rise to the level of copyright infringement, but this seems to go a bit beyond that.”
Lemley said that in the world of music, liability for copyright infringement has been found for much less copying.
If the substantial similarity test were passed, then the question would be whether Melania Trump could appeal to any exception or exemption.
Washington-based lawyer Jonathan Band said that the fair use doctrine would probably not protect Trump in this case, because her speech simply copied from Obama's, rather than quoting from it and giving attribution.
The fact that the speech was given in a political context would often be a factor in considering the fair use question.
But Rebecca Tushnet, a copyright law professor at Georgetown University, told Bloomberg BNA that just because Trump was “telling this story in a political situation doesn't make a difference.”
Peter Toren, a copyright lawyer with Weisbrod Matteis & Copley PLLC, Washington, agreed.
“What she was saying really wasn't political,” Toren told Bloomberg BNA. “What she was talking about was really herself. It's lifting the speech for political purposes but it's not political in a sense that it's addressing a topic of public controversy.”
However, Sandra Aistars, a copyright law scholar at George Mason University, said that although some of the Trump wording was very similar to the Obama speech, “the words used are common phrases which are not original to either of them.”
“While this likely wouldn't pass muster as a copyright infringement claim, it may well raise eyebrows on campuses around the country if a student turned in an essay so closely reflecting another's views/work,” Aistars said in an e-mail message.
On top of that, copyright law professor Robert Brauneis of George Washington University said he thought that the amount of copying found was too small.
“I think there is pretty good evidence of a small amount of copying in fact,” Brauneis told Bloomberg BNA. “I don’t think the few small fragments would amount to actionable infringement.”
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