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."


  1. Thanks for this post. There are a lot of people who are unclear on the difference. In fact, at my day job, one of the benefits newsletters once contained a lengthy article in which they misstated just about everything regarding these issues. It was sad to see.

  2. Fantastic article. Now if we could just get the courts to agree that torrent sites that distribute ebooks free of charge without the consent of the author constitutes copyright infringement, and is therefore illegal, we'd really be getting somewhere!

  3. Very interesting. So if an author wants to have a fictional character quote two sentences from Atlas Shrugged by Ayn Rand, would it be okay to do so as long as the character gives credit to the author and it is in quotes? Or is the work still too young and permission would be needed?

  4. Can the words "plagiarized work" be used properly in two contexts (i.e. source that was copied or a work copied from other uncited souces.

    I have seen published dissertations display a copyright notice eventhough there is plagiarism in the dissertation. If I reproduce the dissertation, can the plagiarist charge me with copy infringement? (Assuming the real copyright owner(s) are unaware or do not care)

    Thank you, Tom Matrka

  5. Like your other posts, this one is fantastically thorough, clear and informative. Thanks for distilling and explaining these terms, which, as you note, the general public, the media, and even judges so often confuse.

  6. Wow, I'm so happy that I stumbled onto your blog. Great stuff!

    I have a quesion that I hope you can help me with:

    I have just submitted a short fiction story to a contest in the US (I live in Canada), and YEAY - my entry won a spot in an anthology. My concern however, is that I want to rework my short story into a longer story. Am I allowed to use my short story and rework it into something longer? Is there any wrong-doing on my part if I do that?

    Thanks for your help.
    Lisa M

  7. Wonderful, detailed post! I'm going to link to it from my blog,

  8. Thank you for your post. Probably you know "A Frolic of His Own", William Gaddis (1994), in case not, it's a stupendous look at what you discuss.

  9. Dear Anonymous,

    No, I don't know "A Frolic," but, based on your comment and the readers' comments on Amazon, I plan to give it a try. Thanks.

  10. You're welcome, enjoy your reading - you will probably want to wear some extra thick skin...

  11. As to the question concerning the fictional character quoting Ayn Rand, legal ethics do not permit me to provide individualized legal advice. That said, "Atlas Shrugged" is most definitely still in copyright, so the question is whether the use you describe qualifies as "fair use" under Section 107 of the Copyright Act. In order to get some basic background on fair use, you might start with the Stanford website Ultimately, your question is sufficiently clear-cut that an experienced editor or media lawyer can likely give you a yes or no answer, even though "fair use" is a notoriously murky area of the law. Sorry that I can't do so in this forum. For sources of free or low-cost legal help for writers, please see my earlier post:

  12. This is eye opening. So if someone wanted to make a modern version of The Speckled Band by Sir Arthur Conan Doyle and uses snippets of the actual words or even paragraphs of text to reflect the original as accurately as possible they would be in fact plagiarizing.

    I love you blog. I just found it. I am going to be reading the archives and new post as they become available.

    Thanks for such enlightening work.

  13. This comment has been removed by a blog administrator.

  14. I have been told that you cannot copyright a title or an idea. This suggests I can do my own version of a fictional work such as James Bond the a secret agent. Obviously I would create a new story. I am aware of Flemings work. If this is wrong on what grounds is it wrong? In my case I have created a fictional work which a publisher has come across and produced a book based on the same title and character. He has even offered to put my picture on the back of his book when I asked for payment. I declined the offer and suggested he take another title so as to avoid confusion with my work. He refused and suggests there is no copyright of titles or ideas. Is the publisher within his rights to do so? If feels rather anti-creative. Thanks.

  15. I am wondering if we should report people who do it. I know of someone who takes stuff from magazines, articles, news portals, blogs and considers it using online resources.

  16. For duplicate content detection there are various tools available. Using plagiarism checker is very beneficial to detect duplicate content as it is easy to use. Plagiarism checker consumes very little time; with one click of mouse you can detect plagiarism in your document without any difficulty.

  17. Can i use names Sherlawk and Watcun in my kindle novel about Sherlock Holmes ....will it still be copyright...

  18. would like to thank you for writing.