Monday, July 4, 2011

The Unoriginal Sin: Differences Between Plagiarism and Copyright Infringement

Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.

By the way, I cribbed every word of that first paragraph from Black's Law Dictionary, which, in turn, was quoting (with attribution) from copyright guru Paul Goldsteins' book Copyright's Highway.   If I hadn't bothered to mention Professor Goldstein, I would have been guilty of the sin of plagiarism, but not the actionable offense of copyright infringement.  (As a matter of copyright law, my quotation from Goldstein is, I trust, safely within the bounds of "fair use.")

In the words of Merriam-Webster Online, "plagiarism" is the act of steal[ing] and pass[ing] off (the ideas or words of another) as one's own; use [of] (another's production) without crediting the source."   By contrast, "copyright infringement," occurs "when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner."  (See the definitions section of the U.S. Copyright Office website.)  Similar, but not exactly the same.

Many acts of plagiarism are not copyright infringements.  And many acts of copyright infringement do not arise from plagiarism.  This post seeks to clarify the differences between the two transgressions -- differences that writers (and sometimes judges) often tend to blur.  Indeed, even Professor Goldstein engaged in a bit of blurring; it would have been more precise to say that "if the plagiarized work is protected by copyright and the copying is substantial, the unauthorized reproduction may sometimes also be a copyright infringement."

Copyright infringement is a legal offense against property rights, whereas plagiarism is an ethical failure to honor one's intellectual forefathers and foremothers.  Plagiarism does not amount to copyright infringement unless (a) the plagiarist has republished copyrightable expression of another, and (b) the amount of copied expression exceeds the boundaries of fair use.  For example, facts and ideas are not protected by copyright; only original "expression" is.  So, an academic who harvests facts from another scholar without giving due credit may be a  plagiarist, but, if she expresses those facts and ideas in her own words, she is not an infringer.  Or to take another example, works first published in the U.S. before 1923 are no longer in copyright.  Consequently, a novelist who lifts sentences and scenes from the short story sequence Winesburg, Ohio (first published in 1919 and now in the public domain in the U.S.) without crediting Sherwood Anderson would also be a plagiarist, but not an infringer.  When I pass off as my own original work ideas or public domain expression or sufficiently brief snippets of expression taken from others (e.g., my quote taken from Goldstein, devoid of quotation marks), I may have  -- depending upon the context -- committed plagiarism because, in the words of Judge Richard Posner, "readers of the new work are invited to think that those features are the inventions or discoveries of the plagiarist."  Yet I could not successfully sued for copyright infringement.

Conversely, if I quote too lengthily from the copyright-protected works of others, I may be a copyright infringer, even though I have carefully and fully acknowledged the author and work that I am quoting.  Thus, for example, in one well-known copyright case, the poet Ian Hamilton was found to have committed infringement by quoting too extensively from J.D. Salinger's unpublished letters in a biography of Salinger, even though Hamilton meticulously footnoted each quotation.

Examples of plagiarism are legion.  The Wikipedia offers a long, varied, and fascinating list of plagiarism controversies.  (Did you know that Helen Keller was caught up in a plagiarism scandal?)  Caslon Analystics of Australia has published another inventory of alleged incidents of literary plagiarism.  Wikipedia has a discussion of the theory and history of plagiarism here.  And Caslon Analytics's useful overview of plagiarism (again, with an Australian slant) may be found here,

I have just finished reading Judge Posner's book entitled The Little Book of Plagiarism, which provoked this post.  Judge Posner touches upon many of the famous unoriginality controversies of recent years, including those involving Doris Kearns GoodwinJoe BidenStephen Ambrose, Laurence Tribe, and Kaavya Viswanathan.  (As Judge Posner points out, an uncommon number of such scandals seem to implicate Harvard personalities, not because plagiarism is especially common at Harvard, but because exposing the lapses of the academic elite gives the press and readers an extra shot of schadenfruede; see the Harvard Plagiarism Archive here for a master list of such controversies since 2002.)

Judge Posner offers an especially good explanation as to why some unacknowledged copying is plagiarism, and some is not:
A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them. 
* * * *
The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism.
I am also indebted to Judge Posner for teaching me the word "cryptomnesia," which refers to "unconscious plagiarism, a sin of neglect rather than intention and, therefore, less blameworthy."  When caught in the act, almost all plagiarists, including Helen Keller, plead cryptomnesia.  But Judge Posner cites research suggesting that cryptomenesia is almost always a fallacious excuse when the copying consists of "verbal passages of more than trivial length."

The legal remedies for copyright infringement are powerful and plainly set forth in federal law.  (See Chapter 5 of the U.S. Copyright Act.)  But, as per Professor Goldstein's observation quoted above, the legal remedies, if any, for plagiarism are by no means clear-cut.

For many years, authors (and other creative people) sought to use the federal Lanham Act as a basis for litigation against those who used their work without proper authorization or credit. That legal strategy reached a dead end when the Supreme Court held in the 2003 case of Dastar v. Fox that the Lanham Act cannot be used to "creat[e] a cause of action for, in effect, plagiarism -- the use of otherwise unprotected works and inventions without attribution."  Law geeks may wish to take a look at this law review article -- and this one, too -- deploring how Dastar and its progeny effectively eliminated the Lanham Act as a remedy for failure to give credit where credit is due.  Without resort to the Lanham Act, victims of plagiarism -- who do not also have a viable copyright claim -- are left with few means of legal recourse.  In commercial settings, a buyer of a book riddled with plagiarism might theoretically seek to use consumer deception statutes to achieved redress, but there is no economic incentive to sue to recover the price of a book, and a plagiarized author may not even have standing to assert such a claim. See this earlier post discussing some less-than-satisfactory post-Dastar options, including ethical complaints to professional organizations and academic institutions.

After Dastar, shaming (either in private communications with the plagiarists' supervisors or in published accusations) remains the most effective tool for attacking plagiarism and plagiarists.  Timothy Noah of Slate offered this original idea for formalizing the shaming process in the book publishing industry; alas, it is not likely ever to be adopted.  And beware: all too often, accused plagiarists respond to shaming efforts with libel lawsuits against their accusers, as discussed in this article from The Chronicle of Higher Education.

In Europe, the legal doctrine of droit moral or moral rights gives authors the ability to claim a right of attribution in their works.  However, even in Europe, droit moral lawsuits are not routinely used to provide a remedy for garden variety plagiarism.  The United States recognizes droit moral or moral rights only with respect to certain limited categories of visual arts.  (See this brief summary of protections accorded by the Visual Artists Rights Act  in the United States.)  Writers do not have equivalent protections for the "right of attribution."

Interestingly, in June 2011, the Third Circuit Court of Appeals seems to have imported into the Digital Millennium Copyright Act ("DMCA") what is, in essence, a kind of cause of action for plagiarism in certain narrow circumstances.  The kinky case involved two New Jersey shock jocks, who hired a photographer to take a picture of them, apparently nude, with their manliness concealed by a sign bearing their station's logo, WKXW.  The photograph originally appeared in New Jersey Monthly.  Later, however, the station scanned the photograph, stripped out the photographer's credit line (without permission), posted it on the station's website, and invited fans to manipulate the image.  The photographer sued for copyright infringement and, based upon some on-air comments that the shock jocks made about him, defamation. The district court dismissed the photographer's claims, but the Third Circuit reinstated them, concluding, among other things, that the photographer's credit line was "copyright management information," and the digital manipulation and removal of the credit potentially violated the DMCA. Here is the always-entertaining Eriq Gardner's summary of the case.  And you  can see a portion of the image in question in this analysis of the case by New York lawyer Peter Fakler. You can read the entire decision here.  Of course, the DMCA does not provide a tool for addressing plagiarism outside of the context of digital manipulation, but it is an interesting new tactic in the age-old wars over plagiarism.

This New York Times article suggests that plagiarism is on the rise among college students and others, who find it tempting and easy to cut and paste into their papers the expression of others available the web.'s website cites a national survey published in Education Week that found that 54 percent of students admitted to plagiarizing from the internet.  Schools have responded by requiring the use of plagiarism-detection software, such as Turn-It-In, created by IParadigms.  

My firm recently handled case where plagiarism detection intersected with alleged copyright infringement.  Several students from McLean High School in northern Virginia tried to turn the tables on IParadigms, and sued the company for copyright infringement.  In checking for plagiarism, Turn-It-In software compares student papers not only to a huge textual database drawn from the internet, but also to an archive consisting of virtually all past papers submitted by students for scanning and review by the Turn-It-In software.  This archive is important to the review process because it enables the software to determine when students have copied from each other rather than copying from the internet.  The database of student papers is not published in any way, but merely resides on computers in the form of digital files used to carry out the comparisons.  The students contended that, in maintaining copies of their papers in these digital files, IParadigms infringed their copyrights in those papers.  In submitting their papers, the students had agreed not to assert any claims against IParadigms, but they argued that the agreement was against their will and otherwise unenforceable.  The courts disagreed and found that the archiving of the students' papers was effectively consented to and, in any event, a "fair use." Here is the opinion of the Fourth Circuit Court of Appeals affirming the lower court's decision of non-infringement.  (My firm represented IParadigms.)

One of the things I do in my legal practice is review manuscripts before they are published for potential legal problems.  The legal vetting task is fairly clear-cut when it comes to identifying issues such as libel or invasion of privacy.  However, it is often nearly impossible for a lawyer (or an editor) to spot potential copyright infringement when an author has plagiarized his sources, failing to use quotation marks or endnotes.  As a result, some publishers are now sometimes using anti-plagiarism software to detect unauthorized copying in manuscripts, particularly in high profile books by celebrity authors.  According to this article in The Chronicle of Higher Education, academic journals are similarly "turn[ing] the anti-plagiarism software that professors have been using against their students on the professors themselves."

As Judge Posner is at pains to point out, what constitutes plagiarism and what does not is not always clear.  Many universities publish useful online resources for identifying and preventing plagiarism, including this one maintained by the UCLA libraries.  And here is the American Historical Association's Statement of Standards of Professional Conduct, which includes a fine discussion of plagiarism, and the sage advice: "No matter what the context, the best professional practice for avoiding a charge of plagiarism is always to be explicit, thorough, and generous in acknowledging one's intellectual debts."

Which reminds me, I almost neglected to mention that the headline to this post is a knock-off of the title of this great article by Roy Peter Clark on plagiarism in the newsroom, which originally appeared in The Washington Journalism Review. Clark's article is filled with examples of journalistic plagiarism and offers good counsel on distinguishing between permissible re-purposing and unethical, intellectual fraud.

Actually the phrase "unoriginal sin," has been used by many other writers in connection with articles about plagiarism.  (See this Google search report.)  Likely, this is the result of independent creation -- numerous writers separately coming up with the same pun, though it wasn't at all original on my part.  Suffice it to say that not every lifted phrase or unattributed joke is a sin.  Remember, Judge Posner's point that there must be some element of deceit and the originator and/or the reader/listener must have some reason to care about the undisclosed repurposing.  This well-known anecdote illustrates the irrepressible tradition of passing off the jokes of others as one's own:
After hearing his friend James McNeill Whistler make an especially witty remark, Oscar Wilde said, "My God, James, I wish I had said that."  To which Whistler replied, "You will, Oscar, you will."