copyright question

Dear Doc:

I was, for reasons I do not want to explain, watching the Republican National Convention on television. I watched Malania Trump’s speech about her husband, THE DONALD, and thought that it was a very good speech, especially for someone who speaks five languages. It sounded pretty familiar, but it was not until I read the news the following day that I found out that some parts of what she said were just like a speech that the First Lady, Michelle Obama, gave to introduce her wonderful and handsome husband years before at the Democratic Convention.  People have said that this is plagiarism. I thought that it might also be copyright infringement. Can you explain the difference?


Flo Tus

Dear Flo:

You sure ask a great question, especially for someone who has a law degree from Harvard!

Plagiarism and copyright infringement are very similar, but different in some ways. Copyright, at least in the United States, is a matter of statutory law and international treaty that governs what exclusive rights an author or artist has in her creative works. These rights are set out in 17 U.S.C. §101 et seq. A person who, without permission, and without excuse under the law, invades these rights is an infringer, and is subject to both civil damages and criminal sanctions.

The exclusive rights, according to the statute are: (1) to reproduce the copyrighted work … ;(2) to prepare derivative works … ; (3 )to distribute copies … by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

There are exceptions to these rights – called “fair use” that excuse not having permission when you violate the copyright holder’s rights. In addition, the First Amendment right of Free Speech provides limits to copyright. The issues are complex, and judges, juries and lawyers spend a lot of time (and money) trying to get them right. The “Doc” is not expressing any legal opinion about whether what Ms. Trump did is, or is not an infringement of copyright held by Ms. Obama.

Plagiarism, on the other hand, is not a legal term. The word “plagiarist” derives from the Latin root for “kidnapper,” plagarius. Professor Darren Hick, of Texas Tech University, proposes this definition in his soon-to-be-published book, “Artistic License: The Problems of Copyright and Appropriation” (2016, Univ. of Chicago Press):

An act of plagiarism is one in which an author (broadly speaking) uses another’s ideas or expression (words, images, sounds) in such a way that the audience is not expected by the author to be aware that she is doing so, and such that the author is to be taken to be responsible for such ideas or expression. In short, the plagiarist presents another’s work as her own.

Professor Hick notes that the norms governing what is, or is not considered plagiarism are institutionally dependent. What would be considered improper in writing your Ph.D. thesis or a law review article (failure to give a precise citation for the source of your statement,) would be likely excused in normal conversation with a lay audience. Using this formulation, the “Doc” thinks that it’s pretty easy to call Ms. Trump on her use of language “borrowed” from Ms. Obama, without permission or citation. Ms. Trump may not be served with a complaint for copyright infringement, even though she violated more than one exclusive rights held by Ms. Obama, but in the court of public opinion, she may properly be called a plagiarist, without fear of contradiction.

So there you have it (or don’t.) Have a question about copyright, or any other intellectual property matter? Get in touch with the attorneys at LW&H. They seem to enjoy this stuff, and they’re really nice folks, too.  Until next time…

The “Doc”

— Lawrence Husick, Esq.