5.2.2 Plagiarism/Copyright Infringement

PLAGIARISM/COPYRIGHT INFRINGEMENT
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It's often difficult to clearly understand the difference between plagiarism and copyright infringement. They are, for the most part, different, but there are overlaps—to such an extent that someone could be guilty of both at the same time. Both involve something called intellectual property.


Intellectual Property

The Merrian-Webster Concise Encyclopedia defines intellectual property as:

Property that derives from the work of an individual's mind or intellect. Early copyright law aimed to protect the economic interests of book publishers rather than the intellectual rights of authors. Modern copyright law protects the labour of elaborating an idea, but not the idea itself. The concept of discovery also plays a role in intellectual property rights: a patent is awarded to one who can demonstrate that he or she has invented something not previously known.(1)

To an author, the "labor of elaborating an idea" are the words he or she uses in telling a story. Copyright protects every word you write. However, your idea for a story is not considered protected, and that's where a lot of writers get confused. Most think that the wonderful idea for a story they write is intellectual property. It's not ... and that's a good thing.

Consider how many stories there are of star-crossed lovers from feuding families who end up killed at the end. Sound familiar? Yet even the story of Romeo and Juliet was based on a poem called The Tragical History of Romeus and Juliet by Arthur Brooke, written in 1562.(2) What made Shakespeare's version immortal was Shakespeare himself—the words he used. If anyone thinks they can write the story any better, and they have tried, they can take that story and write it in their own words. West Side Story is a perfect example. It's a good thing too, or modern authors would probably have little to write about.

So any idea is not protected? Not exactly. The other part of intellectual property includes the "concept of discovery." This involves trademarks, tradesecrets, inventions, patents, architectural design, software, graphic arts, academic research, and so on. All of these are a result of ideas, but not ideas in the sense of a writer coming up with a storyline. It's related to research discoveries, new methodologies for research, and so on.

Since I'm not a legal expert, that's about as far as I'll go in trying to differentiate the two. You can search the web and get just as lost in conflicting opinions as I was. About the best I can say is that plagiarism is a big concern primarily in the area of academic research. In fiction writing, plagiarism wanders, or possibly meanders, into the area of copyright infringement.

For example, all of writings of Leo Tolstoy are no longer copyright protected, so can be reprinted by anyone. And yet, if you use the line, "Happy families are all alike; every unhappy family is unhappy in its own way" in your story, you would be guilty of plagiarizing Anna Karina because you are passing it off as your own words. Since footnotes are not usually used in works of fiction, a writer may get around this by writing, "In the words of Leo Tolstoy, happy families are all alike; every unhappy family is unhappy in its own way."

That only applies where the quote is unusual or unique. An everyday, common way of saying something cannot be considered plagiarism. For example, if you wrote, "Mother died today," you would not be guilty of plagiarizing The Stranger by Albert Camus.

The most egregious form, of course, is passing off someone else's entire work as your own. I was a victim of this. One of my stories was taken right off this site and submitted in a creative writing class as another person's work. Fortunately, the teacher caught it. This is a classic case of plagiarism. If it remained unpublished by the person who "borrowed" it, I suppose it would only be called plagiarism. If sold to make money, then it is copyright infringement, which is legally actionable and which could also result in a prison sentence.

While not entirely accurate, perhaps a good analogy of the similarity and difference between plagiarism and copyright infringement is by comparing gossip with slander. Their nature is basically the same and both are considered immoral. Gossip can cause someone to be castigated or ostracized, but slander causes quantifiable damage to a person's reputation or earning potential. In much the same way, plagiarism is cheating, but usually causes no loss of income for the author. If it causes economic loss for the author, it tends to be copyright infringement.


Copyright Infringement

Let's start with what isn't protected. Titles are not copyrighted. Titles can be trademarked, but only if they're used for merchandising, and even then only if it's not a common word. For example, I could title a story "The Grapes of Wrath" without fear of copyright infringement. Steinbeck never trademarked a Tom Joad action figure. However, I would be in legal trouble if I titled it "Star Wars."

As mentioned previously, ideas are also not copyrighted. Authors tend to get very proprietary about an idea they come up with, thinking it is somehow it has never before been thought of. You copyright the words you use, the characters you develop, and the way your plot unfolds. But that's it. For example, a writer cannot take the plot from one story, change the character names, introduce a new character, and call it a new story. This is copyright infringement. Names can be trademarked, again if using them for merchandising (Luke Skywalker), but ideas cannot be owned by any one person or group.

In some cases, an author will purposely allow their characters to be plagiarized. This is the case in fan fiction. However, many still consider this lazy writing since characters and their relationship to each other, one of the most important components of a story, are already developed. These stories cannot be sold for publication, although they can be sold to the owners of the copyright for story ideas. Star Trek is a classic example where there are many writers who have written stories about the escapades of the starship Enterprise and its various crew members. However, unless specifically granted, the rights to characters remains the property of the author or publisher who has bought them. It may be okay as a hobby, but not for the serious fiction writer.

However, an author can take a single idea from somewhere else and turn it into several different stories. The characters and plot development should change the story so that copyright is not called into question. Authors frequently use ideas presented elsewhere as a jumping point for their own stories, which is perfectly legal. Most experienced writers understand and accept this. Often, though, novice writers suffer something called “Influence Anxiety."


Influence Anxiety

Influence happens. It's unavoidable, but in most cases it’s unconscious. You should not be penalized for being well-read, and because you have read certain writers, their stories have been thoroughly absorbed into your memory.

You may sometimes unconsciously borrow motifs and ideas from pivotal works without even realizing you're doing it. That happens, but premeditative borrowing is where some writers set out to be like the writers they admire. It's legitimate, though it’s customary to acknowledge your conscious borrowings.

Many writers are desperately afraid of inadvertent influence to the point of paranoia. Since every good idea has already been used, getting too anxious about such chance resemblances is a waste of time. Any idea you really like that absolutely works for your story is your idea, no matter who else might have used it before.

The only limitation on this is your reader’s acceptance. If your story has elements that may be recognizable as being similar to a book by someone else, as long as it's your own story, and those motifs feel important and true within the context of your work, they're your ideas now. If you're still worried that the resemblance is close enough and the other work well known enough, acknowledge it. Slip it into the text of the story. Otherwise, it's yours. If you doubt, think of any movie or television show that appears to be unique, and then recall all the "copycat" works that come out in the ensuing years. This is perfectly acceptable.


Legal Consequences

One high-profile modern court cases helps to clarify copyright infringement, that of the Harry Potter series. In 1999, J.K. Rowling battled a federal copyright lawsuit in New York claiming her four Harry Potter books infringed on the work of Nancy Stouffer, a Pennsylvania woman.(3) Stouffer claimed Rowling stole the word "Muggles" from her 1984 book The Legend of Rah and the Muggles, and the image of Harry Potter from the title character of a series of childrens' activity books called Larry Potter and His Best Friend Lilly. The Muggles in Stouffer's book are different from those in Rowling's. What was allegedly infringed was the term, not characters or story ideas. There are some similarities between the works, for instance, Harry Potter's mother is Lily, similar to Larry Potter's friend Lilly. Harry Potter's first name rhymes with Larry, and the last names are identical. Harry and Larry both wear glasses and have black hair. Larry's hair is wavy; Harry's is "unruly."

In September 2002, the U.S. District Court for the Southern District of New York found not only that Rowling did not pilfer the Muggles, but also that Stouffer had lied to the court and doctored evidence to support her claims.(4) Judge Allen G. Schwartz fined Stouffer $50,000 and ordered to pay a portion of the plaintiff's attorney's fees.

Stouffer maintains her position and denies the allegations from Rowling and Scholastic Press that resulted in the ruling. She filed a Motion for Reconsideration with the Court. When that motion was denied, she appealed to the United States Court of Appeals for the Second Circuit; the Appeals Court upheld the lower court's decision.(5)

Rowling's legal woes, however, continue to pile up. In 2009, another lawsuit was brought by the estate of Adrian Jacobs for copyright infringement. Jacobs was deceased, but the family felt that there were too many similarities between Rowling's Goblet of Fire and Jacobs The Adventures of Willy the Wizard: Livid Land. It was dismissed in 2011.(6)

What all this means is that litigation usually dogs any successful writer. It's unavoidable, so be prepared to simply let the courts settle the issues while you continue writing. Just be aware of how you come up with ideas and be willing to defend them.


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FOOTNOTES

(1) Merriam-Webster, Inc. www.merriam-webster.com/dictionary/intellectual%20property, accessed December 2013.

(2) Shakespeare Navigators, www.shakespeare-navigators.com/romeo/BrookeIndex.html, accessed December 2013.

(3) FindLaw, Thomson Reuters. "Civil Action No. 00-CV-1201" www.sgtlawfirm.com, news.findlaw.com/cnn/docs/jkrowling/stouffercmplnt.html, accessed December 2013.

(4) Reporters Committee for Freedom of the Press. "Claim against Potter author doesn't fly with federal judge" rcfp.org, www.rcfp.org/browse-media-law-resources/news/claim-against-potter-author-doesnt-fly-federal-judge#init, accessed December 2013.

(5) vLex Global Legal Intelligence. Scholastic Inc. v. Stouffer, (2nd Cir. 2007), "Docket Number: 05-6976" vLex.com, federal-circuits.vlex.com/vid/scholastic-inc-v-stouffer-26544481, accessed December 2013.

(6) Itzkoff, Dave. "Plagiarism Suit Against J. K. Rowling Is Really, Truly Dead (For Now)," The New York Times, Sunday, December 22, 2013, www.artsbeat.blogs.nytimes.com/2011/07/18/plagiarism-suit-against-j-k-rowling-is-really-truly-dead-for-now/?_r=0, accessed December 2013.