On the opening night of the Republican National Convention, Donald Trump’s wife, Melania, delivered a speech from the convention floor in support of Trump’s nomination. The speech was infused with rhetoric about such things as “hard work,” “your word is your bond,” and that one should “treat others with respect.” Right after her speech, Mrs. Trump was being accused of plagiarizing portions of Michelle Obama’s 2008 Democratic National Convention speech in support of then-candidate Barack Obama. This mash-up highlights the similarities between the two. While the media is swirling around the question of whether these similarities equate to plagiarism, we here at TheTMCA.com ask a slightly different inquiry: do these similarities make Mrs. Trump a copyright infringer?

Plagiarism and copyright infringement are kindred spirits, but there are differences between the two. One could think of plagiarism as a type of immoral “passing off” claim. The plagiarist takes someone’s work and pretends it is his or her own by failing to attribute the source of the content. Such an act may not be against the law per se, but it is considered a moral wrong in many industries (even in politics!). Copyright infringement, on the other hand, is copying protectable portions of someone else’s work without obtaining permission. Not all plagiarism is copyright infringement, though. If I republish Shakespeare’s Sonnet No. 18 (“Shall I compare thee to a summer’s day”) but claim it is “Mike Keyes’ Sonnet No. 1,” that would be plagiarism because I’m trying to pass off the Bard’s work as my own. It would not be copyright infringement because Sonnet No. 18 is in the public domain. Further, according to the blog plagiarismtoday.com, in certain circumstances, plagiarism can include copying “[i]deas, facts, and general plot elements,” without attribution as to the source. Facts, ideas, and general plot elements are not protected under copyright.

It appears that Melania Trump (or her surrogates) copied portions of Michelle Obama’s speech without attribution to her. That is plagiarism, but it is an act of copyright infringement? According to Gov. Chris Christie, “[n]inety-three percent of the speech is completely different.” Even if the governor is correct, it is not a defense under copyright to point out the dissimilarities between the two works.

Copyright infringement occurs when there is access and substantial similarity. Presumably there was plenty of access to Mrs. Obama’s 2008 speech, so that leaves the issue of substantial similarity. When one looks at the side-by-side comparison here, a couple of things seem apparent. The sentiments expressed by Mrs. Obama on topics such as “hard work,” “passing on values to the next generation,” and “strength of one’s dreams,” are hardly original elements of expression. Scores of public figures have expressed similar sentiments in the past. That is not the end of the inquiry because she could always claim protection in the “selection” or “arrangement” of these unoriginal turns of the phrase. On this score, Mrs. Trump’s selection and arrangement of these same elements are similar and could prove problematic for her if this was a copyright case in a court of law. Moreover, the combination of enough words and phrases in a few sentences could conceivably support a copyright infringement claim.

To crib a rhetorical flourish from Gov. Christie’s convention speech, is Mrs. Trump “guilty” or “not guilty” of copyright infringement? I’ll let the readers decide, but Team Trump might be hoping that whoever owns the rights in Mrs. Obama’s speech did not register the work with the U.S. Copyright Office prior to the opening night of the Republican convention.