In 2016, Melania Trump recited a beautiful speech at the Republican National Convention that had portions which sounded exactly like a speech given by Michelle Obama at the Democratic National Convention in 2008. Mrs. Trump feigned ignorance of the 2008 DNC speech, and essentially the speech was superseded by another news story within a week. While some critics claim plagiarism, Mrs. Obama could have a potential copyright infringement claim against Mrs. Trump based on the context of the speech, the actual portions lifted from Mrs. Obama’s speech, and the doctrine of subconscious copying. This article first examines the elements Mrs. Obama would need to prevail on a copyright infringement claim, discusses the judicially-created subconscious copying doctrine, and explains the relevant defenses to the subconscious copying doctrine. This article next analyzes the infringement action against Mrs. Trump and how subconscious copying plays an important role in the case. Finally, this article proposes that the subconscious copying doctrine be extended to political speech.
Danielle Mobley, Deja Vu or Copyright Infringement? Why Melania Trump Infringed on Michelle Obama's Copyrighted Speech Through Subconscious Copying, 17 J. Marshall Rev. Intell. Prop. L. 360 (2018)