LEGALLY SPEAKING, IT DEPENDS: Plagiarism

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Stole another idea for an article topic from the odd breaking news stories I read in the “you think you know but probably would get a lot of things wrong about it” arena. This particular time we're talking about plagiarism... What it is, what it isn't and how to recognize it when you see it (or avoid having others see it in your work.)

Unless you're very good in trying to sound like a dictionary most of the time (something my friends have actually accused me of) the act of finding a definition of plagiarism runs the risk of being a self-referential example. Here's my off-the-top-of-my-head-so-I-hope-I'm-not-actually-plagiarizing-anyone attempt:

That mouthful should get nodding heads of agreement from the bulk of you. But just because we can mostly agree on a definition of what plagiarism is doesn't mean we understand its implications. And the consequences aren't always the same for the same offense. As always, it depends… On who's judging you, where you are in the world and how the action is perceived.

It might surprise some of you to learn that plagiarism isn't actually against the law. The confusion comes from the interaction of the elements of plagiarism with those of copyright protection. It is difficult to plagiarize someone's work without copying, to some degree, that work. Because of this, many news stories get the two concepts mixed up and report, “found guilty of plagiarism” when a more accurate description of the case would likely be “found guilty of copyright infringement while plagiarizing.” Not as sexy a headline, I admit.

And there are instances where you can get in as much trouble with plagiarizing as if it were against the law. That self same reporter covering the court story if they were found to have plagiarized a significant part of their story could suffer the ridicule and likely censure from their publisher and find it hard to get employed as a trusted journalist again. That hits harder than many courts could with economic and reputational sanctions. Also, institutions where reputation and/or individual work are highly valued, such as universities, often have as part of their rules of student action entire sections devoted to combat and punish acts of plagiarism, often quite severely. You could get kicked out of school for something that couldn't even get a court date legally.

Some of you might be wondering, “Since plagiarism isn't even against the law in the U.S., why make a fuss?” Let's start with a reminder of how laws in different parts of the world differ, sometimes greatly.

First a few key concepts...

Remember in my article about moral rights, I brought up the distinction between copyrights with their focus on economic rights and moral rights, or as I branded them with my own, less baggage carrying term, reputational rights. The distinction is important. Economic rights are almost purely focused on economic damage. If the offended could be made whole with a calculable cash award, there is an action that can be settled by the courts of equity. But if the damage is intangible or hits mostly against the offended's reputation, it is much harder to place a dollar figure on that loss.

The US has lots of detailed statutes that handle economic rights and very, very few that touch on reputational rights. That doesn't mean those rights do not exist. You just have to secure them independently, mostly done by contract terms (e.g. reputational rights are the essence at the heart of every negotiated Credits Clause in every contract in Hollywood).

The reason it matters to screenwriters is that their work often crosses international borders. While reputational rights are nearly ignored in the U.S., they are quite a big deal in the European Union and most of the rest of the world. Those countries give a nearly equal treatment to economic and non-economic (e.g. reputational) rights.

And how they go about handling those differences vary considerably too. In the United States, we have Fair Use which is an amorphous, court created way of figuring out if the use of someone else's work was fair in the impact on the originator's economic rights. Each case must be decided on the details involved (it really does depend). In other countries (e.g. most of the EU), they approach that issue completely differently with a similar sounding method, Fair Dealing. The big difference is Fair Use sets up a stricture of parameters to measure upon each case and the judge determines in his or her own discretion how this particular instance lands. It's an equity-based decision. With Fair Dealing, the particular specific ways you can use someone else's work are set out directly in the statute. If it isn't written there, or you haven't followed the express directions on how to use someone else's work, you can't. It makes the statutory composition more difficult and much more detailed, but, the court cases are pretty straight forward to determine. It's a statutory based decision.

However the legal system approaches monitoring the actions, copyright and plagiarism have common core elements that differ and diverge. For the most part, if there is a calculable economic impact, then copyrights are at risk. If there's a more reputational impact, then plagiarism is the big problem. Can they be tied together? Yes, and often are and the parties can be confused as to what's going on. A little while back Woody Allen's movie Midnight in Paris was sued by the William Faulkner's literary rights owners for a paraphrase of a Faulkner quote used as dialog. Now the courts quickly realized it wasn't a copyright issue. The paraphrasing, or “quoting” someone using your own phrasing instead of the original, was more like plagiarism, though not really in this case since the attribution to Faulkner was also in the script a few lines down. But because U.S. law doesn't have a plagiarism branch, we'll never be sure if it was enough to have had a reputational impact.

U.S. law does deal with reputational impact in other areas, just so you know. Reputational impact is the main basis behind U.S. trademark law.

So you see, if you use plagiarized material in your script, there is a chance that someone will look for some way to go after you, even if the laws of a particular country don't quite fit.

And it's not just the entertainment industry that deals with plagiarism. That news story that gave me the idea for this article topic came from the art world. Appropriation art is a very popular technique in modern art circles. This form of creativity uses other peoples work as a source or as part of the artist's new work. In a sense, it is artistic plagiarism in practice, though the variations are arguably so transformative that the harm seems minimal (or not, it is a very controversial legal stance without a clear determining case as yet). Famous examples include Andy Warhol's Marilyn Monroe paintings and Shepard Fairey's Obama Hope poster.

In the recent case of artist Luc Tuymans versus photographer Katrijn Van Giel,a Belgian court weighed in on Tuymans' use of Van Giel's photographs for the framework of his “A Belgian Politician” painting. The headlines reporting the story touted the appropriation artist had been found guilty of plagiarism. Actually from what I can gather, it's more a case of a failed claim of parody as defense to copyright infringement. If you don't read Dutch or don't know how to use Google Translate, it is interesting to note that in the original article that reported the events, the only place the word plagiarism is used in the article is in the headline, not in any of the quotes from the court (If anyone who can point me to a copy of the actual court decision it would be appreciated).

Music is also an arena where plagiarism-like practices often crop up. Recently, it came to light that discussions were had between the involved artists on the similarities between Sam Smith's new work, Stay with Me and Tom Petty's classic I Won't Back Down. In many of the stories being reported about the amicable solution, (Petty and his associates are being listed as co-authors of the new work and sharing in the spoils) there is lots of references to plagiarism.

Plagiarism isn't a new dilemma... Far from it. Novelists have had to deal with it for hundreds of years. The World Intellectual Property Organization article linked above defines plagiarism as:

But when you hear a great line or want to use someone else's wording for an idea in your own work, you could be entering into the plagiarism arena. There are approaches to lessen the risks, but they also have thorns that can make you bleed.

Some suggest paraphrasing as a way around the direct quoting dilemma. But as shown above in the Midnight example, putting it in your own words doesn't necessarily make the source unrecognizable. And there is also the potential of the paraphrase not getting the original sentiments right, or worse, completely misconstruing what the original stated. Done poorly, it could open up defamation claims.

Another approach to direct plagiarism is in an honest attempt to pay homage to the source material. It's probably the basis behind the phrase, “imitation is the sincerest form of flattery.” You can often find filmmakers who copy exact elements from other films and filmmakers they admire within their newly created works. Look at nearly any Quentin Tarantino film and you'll be able to spot obvious and very esoteric homages to a slew of great films and filmmakers. Done well, the flattery will win out and there will be no reputational damage.

Done poorly?

Full attribution and accurate quotation doesn't always get you off the hook. Remember, it's a reputational issue. If the “victim” sees the use as bad for business, it might still lead to trouble for you. My favorite example is the oft correctly quoted “First kill all the lawyers.” Shakespeare line. The context in which it was said in the play is actually not a diatribe against lawyers, it's the first step in a formula to instill anarchy. A whole different meaning is implied, taken out of context.

Finally, there's the “how” it is used. Imputation by the one who uses it can lead to potential reputational damage. For example, a gangster who quotes a real politician as justification for doing crimes, will likely not sit well with that politician regardless of whether the quotes are accurate or align with the context of the original.

Should you plagiarize in your works or should you “avoid them like the plague?” Somebody said that, somewhere and I think I've got the right interpretation and context. That's a decision you'll have to make for yourself. As long as you recognize the minefield you're stepping in if you decide to plagiarize...

Then it depends.

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