The 2016 primary presidential campaign is over. In the midst of this, a controversy has arisen in the Republican National Convention speech given by Melania Trump, wife of Republican nominee Donald Trump. The source of controversy is that parts of the speech delivered by the First Lady hopeful were directly pulled from a Michelle Obama Speech given years back at the Democratic National Convention. Many people have been going directly after Melania for plagiarism.
Even school kids should know better than to do such a thing. Of course, how can you blame her when she wasn’t even the one to write the speech? Immediately after this news broke out, the speechwriter responsible for the script apologized and offered her resignation. There are legal implications to this incident, such as who has control over the finished product, or whether such “rights” to these written materials have been transferred over to someone else?
Plagiarism is more or less an academic term that translates to copyright infringement in the legal context. Any written work, published or not, is guided by copyright law. Copyright law gives copyright protection to the author of the work, or if the author is willing, they can transfer this right to a third party. Even taking snippets of this work can be viewed as copyright infringement. If a lay audience can associate the copied portion from the original text, then there is copyright infringement.
However, as ideas are not protected under copyright law, a concept or theme is fair game. Let’s say, for example, that someone doesn’t want to per se copy the story in the Ian Fleming James Bond novel but would still like to implement the idea of a character that exhibits such traits as James Bond (being suave, lady’s man, having an over-the-top villain to deal with). This is okay. Anyone can use such concepts. However, you can’t directly copy the story itself.
Melania has spoken words that come straight from the Michelle Obama speech. As to whether there is a copyright to the original speech, this is possible but unlikely as copyright requires for the work to be creative. A generic speech letter might not warrant copyright protection. Of course, even if there is a copyright to the speech, it would be the scriptwriter who is the author and not Michelle Obama herself.
One way such writers can ensure protection of their work is through registration of the work with the Copyright Office. However, works do not have to be registered for it to get copyright protection. Copyright registration is essentially an announcement to the world that you have a copyright over this piece, and it is a clear indicator that the work is under legal protection.
The Melania scenario is a rather straightforward one. Regardless of who the copyright holder of the script is, there is blatant copying here. There is no need to decide if there has been copying, because there has been de facto copying. The only issue is whether the copying warrants a copying infringement lawsuit, and if the script meets the requirements of a copyright, then this very well could be the case. It is best that authors register their work and to make sure the speech is as unique as possible. Generic speeches are generally not protected.
Politicians and Ghost Writers
Politicians have a duty to provide honest information to the public. As mentioned before, copyright does not give protection to ideology. If President Obama expresses a certain viewpoint on domestic policy, this does not prevent another to come forth and present the same viewpoint. Ideas warrant no protection under intellectual property laws. And furthermore, an oral statement by itself, no matter how original or creative, does not warrant copyright protection.
Under copyright law, the work has to be “fixed,” meaning that it is available in some tangible form, before it can be given any form of protection. An oral statement by itself is not protected. An oral statement that comes from a script is. Politicians would be wise to choose their staff wisely and to make sure that every member of their staff is aware of intellectual property rights, especially so if they plan on making a public announcement that is based off a script.
As for ghost writers, they can have copyright protection over their work as well. Ghost writers are those writers who actually write the work but the credit is given to someone else. It is said that even Shakespeare himself had a ghost writer who was responsible for putting together his plays. Ghost writers may receive copyright protection over their work because even though the work is accredited to someone else, it is they who authored the work.
Of course, they can always transfer their rights to a third party, in other words, the person listed as the author. You can transfer rights by way of a license or through an assignment. The difference being that a license is usually a nonexclusive and temporary transfer of rights whereas to assign a right is to permanently give up all ownership rights to the work. Depending on the circumstances, one might be better than the other.
Ghost writers are usually left in the dark because when licenses are not set between the involved parties, publishers intervene and stake a claim to the work. For example, let’s say that I write a book but I let someone else take credit for it. However, a publishing company such as Penguin Classic might come in and offer a deal to the person who is listed as the author. This is bad news for me because the publishing company will try to obtain rights to the work.
In general, it is the publishers that end up with ownership over the work. The author (or rather the person listed as author) will either permanently transfer all rights to the publisher or will have some license agreement in place in which the author will receive royalties but ownership rights will be held by publisher. In any event, this leaves the ghost writer in the dust. Ghost writers, if they care enough for the work, should take extra measures to ensure that there is a license agreement with the third party that will ensure that the rights to the work stay with them.
Ultimately, there are no clear-cut answer to issues such as this. Copyright governs works like these and it is primarily through licenses and contracts where we can hope to establish ground rules with regards to ownership. Tighter restrictions will prevent incidents such as that brought on by the Trump campaign from occurring, but that was just a blunder that should never have happened.