Melania Trump ‘plagiarism’ gaffe: How to protect literary works
Melania Trump, wife of Republican presidential candidate Donald Trump, waves to the crowd after delivering a speech. PHOTO | AFP
Social media was awash the whole of last week after Melania Trump allegedly “plagiarised” Michelle Obama’s speech at a Republican National Convention.
Michelle Obama had apparently delivered the same or similar words in a speech delivered at a Democratic National Convention. These allegations of plagiarism have apparently been very damaging to Trump’s campaign.
Someone asked me if Michelle Obama has any recourse against Mrs Trump. Well, I doubt Mrs Obama would take any action, however I analysed the case using Kenya’s copyright laws (if the same situation happened in Kenya).
The simple legal definition of plagiarism is taking one’s written works without authorisation or credit and passing them off as one’s own.
Copyright laws protect literary works (such as a written speech) once the author meets some qualifications. One is that the work must be original and two, it must be reduced into a fixed form.
Therefore one would ask was the speech by Mrs Obama original and if so, has it been reduced to any fixed format? I would ask if Mrs Obama was reading her speech from a written script or whether she just delivered those words at the spur of the moment?
A written script would mean that the work has been reduced into material form and therefore qualifies for copyright protection. Copyright laws apply to artistic works, audio-visual works and literary works amongst others.
This therefore means the speech could be protected under the class of literary works and to some extent, as a broadcasted work. But in this column I want to look at “literary works.”
Reducing the work into fixed format means an embodiment of the work through a device. If the speech was original and written down then it qualifies for copyright protection.
If Mrs Obama protected her speech then she or her estate would have protection for 50 years after her death. She would be able to control the reproduction, sale, translation or adaptation of the speech.
This means that nobody else could use the speech for commercial purposes without her consent.
Obviously there is the element of fair use and that is, a third party is allowed to use the speech in a non-commercial context.
For example a lecturer using the speech as lecture material. I have come across various speeches by public figures, for example, Martin Luther King, Malcolm X among others.
These speeches have been the basis of various quotes on various issues of life. I have also come across some speeches issued in conferences.
One thing I have found to be distinct is that the speeches issued at the spur of the moment such as a political rally are not protected under law. However I have seen cases where speeches issued in conferences have been protected as copyright.
Mrs Trump’s best recourse would have been to acknowledge Mrs Obama’s quotes in her speech which obviously would not make any sense for Mr Trump’s campaign.
I truly doubt whether Mrs Obama would sue Mrs Trump for plagiarism but in my overall view, under Kenyan law she would have a case if her speech was protected.
Kenya has had its own fair share of case law on plagiarism. In the case of Anne Kukali versus Mary Ogola, the defendant allegedly copied a master’s thesis from the plaintiff.
The court found that the defendant had in fact copied the works word for word save for a few exceptions.
What we can learn from Mrs Trump’s case is that plagiarism is very damaging. It is good to recognise an original author, if you are giving a speech and have picked up quotes from a previous speech.
As a speech writer it is good to protect your works to prevent plagiarism.
