“Clear Eyes, Full Hearts,” Can’t Steal?

Can you plagiarize a catchphrase?

Mitt Romney’s Facebook page showing “Clear Eyes. Full Hearts. Can’t Lose!”

The creator of the television show Friday Night Lights, Peter Berg, accused Mitt Romney of plagiarizing the slogan, “Clear eyes, full hearts, can’t lose” in a letter obtained by Hollywood Reporter. Coach Taylor and his team, the Dillon Panthers, utter the phrase frequently on the Texas football drama. Romney has used it in speeches and on his Facebook page. Can you really plagiarize a catchphrase?

Sure. Plagiarism is an ethical transgression, not a legal one, and there’s nothing inherently unplagiarizable about slogans and catchphrases. Plagiarism is usually defined as passing off someone else’s words or ideas as your own. If Romney had claimed to be the author of the phrase “Clear eyes, full hearts, can’t lose,” he would certainly have been guilty of plagiarism. As it stands, the Republican nominee is in a bit of a gray area.

Romney did not explicitly cite Berg or Friday Night Lights as the source of the catchphrase, but he made it clear in one of his speeches that he had heard it rather than invented it himself. In a video of the speech, Romney says, “I thought as I saw some years later a phrase that reminded me of David Oparowski: Clear eyes, full heart, can’t lose.” (Oparowski was a young cancer patient befriended by Romney before his death.) Romney might have assumed that Friday Night Lights was familiar enough to his audience that they would already know the source of the phrase, making it unnecessary for him to state the source outright. (This may not have been a good assumption: Friday Night Lights never drew high ratings.) This kind of homage is acceptable in artistic works as long as the artist is reasonably sure that his or her audience will understand the reference and as long as explicitly citing the source would ruin the artistic value of the piece. (Consider how unfunny Saturday Night Live would be if it had to explain the source of everything it parodied.) Romney might have a stronger defense against charges of plagiarism if he could demonstrate some artistic merit in his political speech, or if he could show that he had transformed the phrase (as Craig Finn did with his album Clear Heart Full Eyes).

Whether or not Romney committed plagiarism, it’s unlikely he violated copyright law. Television scripts are generally copyrighted, but according to the fair use doctrine, it’s fine to quote copyrighted material for purposes “such as criticism, comment, news reporting, teaching, scholarship, and research.” Whether or not use is fair depends on “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Since “Clear eyes, full hearts, can’t lose” is a minuscule portion of the entirety of the Friday Night Lights script, a judge or jury would probably not deem Romney’s use of the phrase a copyright violation. Such a short phrase would be legally protected in a case like this only if it were trademarked. Commercial slogans are often trademarked, but “Clear eyes, full hearts, can’t lose” is not.

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Explainer thanks Jonathan Bailey of plagiarismtoday.com.