“Your word is your bond”: Is Trump’s plagiarism of Obama copyright infringement?

As the US presidential election continues, with it comes more copyright controversies. The latest scandal arose at the recent Republican National Convention when Melania Trump, potential new FLOTUS, took to the stage and wound up in a plagiarism pickle.

Speaking to reporters prior to her speech, Trump proudly claimed she had written it with as little help as possible. However, during Trump’s address, a journalist began to sense some major déjà vu with Michelle Obama’s address given at the Democratic National Convention back in 2008. Comparisons between the two speeches of the prospective First Ladies soon found some eerie similarities…

Michelle Obama, 25 August 2008 Melania Trump, 18 July 2016
And Barack and I were raised with so many of the same values: that you work hard for what you want in life; that your word is your bond and you do what you say you’re going to do; that you treat people with dignity and respect, even if you don’t know them, and even if you don’t agree with them.

And Barack and I set out to build lives guided by these values and pass them on to the next generation. Because we want our children – and all children in this nation – to know that the only limit to the height of your achievements is the reach of your dreams and your willingness to work for them.

My parents impressed on me the values: that you work hard for what you want in life. That your word is your bond and you do what you say and keep your promise. That you treat people with respect. They taught me to show the values and morals in my daily life. That is the lesson that I continue to pass along to our son.

And we need to pass those lessons on to the many generations to follow. Because we want our children in this nation to know that the only limit to your achievements is the strength of your dreams and your willingness to work for them.

This naturally gave rise to a storm of controversy, as well as some other famous Trump quotes making their way around Twitter:

Following numerous denials and defences, Meredith McIver, the writer of Trump’s speech, eventually came forward and stated that she had inadvertently copied those passages.

This gives rise to the question – is this imitation just the best form of flattery, or is it against the law?

Your word is your bond

There could be legal consequences if Trump’s speech is found to be copyright infringement. Obama’s speech is a ‘literary work’ so is protected under copyright law. So what would the position have been if Trump had made her speech in Australia? In Australia, copyright infringement occurs where:

  • there is an infringing act;
  • done to a substantial part of the work;
  • without consent.

Performance of the work in public, such as presenting the speech at a national political convention, is an infringing act, and Trump assumedly did not have consent to use those passages. The key issue therefore is whether Trump’s use was in relation to a ‘substantial part’ of Obama’s speech.

This is not so much a question of quantity, but rather quality – what is the importance of the parts taken to the original as a whole? The parts taken could be argued as particularly significant and memorable passages (at least they were to Trump), and therefore form a ‘substantial part’ of Obama’s speech. The fact the copying was nearly verbatim and easily recognisable also goes towards substantiality. As well, where the work is highly original, taking even a small part may be seen as ‘substantial’. This might help Obama’s case, though conversely, Trump’s camp have argued that the words and concepts used by Obama were unoriginal. However, it seems likely that a ‘substantial part’ would be established here.

If it is found to be infringement, Trump wouldn’t have much luck in terms of defences. With no broad fair use defence in Australia, Trump would have to fall under one of the set fair dealing exceptions (such as research or study, or reporting news), none of which seem to apply here.

You treat speeches with dignity and respect

In the US, copyright infringement is looked at a little differently – instead of looking at substantial part, the key issue is whether there are ‘substantial similarities’ between the two works.  The fact that a number of phrases were literally copied could suggest there is a substantial similarity.

If there is infringement, unlike Australia, the US does have a broad fair use defence, which looks at factors such as:

  • the purpose and character of the use;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used; and
  • the effect of the use on the value of the copyrighted work.

Whether the defence could be used depends on a balancing of factors by the court. Trump could argue that the only a small amount of the speech was taken, and that the speech was for political purposes and therefore arguably not for commercial use. On the other hand, Obama could argue the ‘substantiality’ of the parts taken for the reasons noted above.

Aside from this, there is one trump card that could be pulled – in the US, works prepared by a federal government officer or employee as part of that person’s official duties are not entitled to copyright protection. Sarah Hurwitz, Obama’s speechwriter, was hired by Barack Obama’s campaign in 2008. As Barack Obama was then a Senator of the US Government, there is a possibility that Hurwitz would be considered a federal government employee writing the speech in her official duties as a speechwriter, therefore placing the speech in the public domain. However, given Obama co-authored the speech, this defence might not hold up, unless she is also considered to have been a government official or employee acting in her official duties at that time.

And pass them on the next generation (of First Ladies)

The plagiarism also gives rise to questions of moral rights. In Australia, authors of works have the rights to have their works attributed to them, i.e. be identified as the author of their work. If Trump had made her speech in Australia, her failure to attribute those parts of her speech to Obama and Hurwitz could be seen as infringing this right. Authors also have the right not to have their work subjected to ‘derogatory treatment’, which is treating the work or performance in a way that is prejudicial to their honour or reputation. Arguably, changing up Obama’s speech and using it for a rival party’s convention could be seen as prejudicial. If it was found that Trump infringed moral rights, a possible remedy is a court order that the person make a public apology for the infringement, which could be politically unpalatable for Trump. However, as we’ve mentioned before, in contrast to Australia, the US has been reluctant to recognise moral rights for authors other than visual artists.

The only limit to your achievements is the reach of your speech

In any case, Obama and Hurwitz haven’t given any indication that they intend to pursue any legal avenues. Still, it’s interesting to keep in mind, particularly given Trump is not the first to face such allegations – there is a long line of other politicians who have been accused of plagiarism in the past.

In the meantime, with email hacks, NDA violations, and fresh complaints of unauthorised use of songs, we suggest buckling up. It’s a long legal road to November.

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About the Author

Siao-Sun HoonSun is a Solicitor who has recently moved to Sydney from the sunny Perth office. She enjoys writing and tweeting about IP issues in pop and internet culture, technology, or any topic that lends itself to bad puns. In her spare time, she likes overanalysing trashy TV and anything Sufjan Stevens.View all posts by Siao-Sun Hoon