Copyright vs. Plagiarism

Plagiarism is thus both broader and narrower than Copyright infringement: (1) directly copying someone's work without attribution is a violation of their copyright and is plagiarism; (2) directly copying someone's work with attribution is still a violation of their copyright, but is not plagiarism; (3) copying someone's ideas without attribution is not a violation of their copyright, but is plagiarism.

Edwin Cole

One of the questions that  writers sometimes ask is whether their idea is too similar to another author's.  This question implicates both legal and ethical issues.

Copyright is a legal concept that protects a written work (among other things) from direct copying. Copyright law prohibits you from, for instance, reprinting Twilight: New Moon under your own name and selling copies of 'your' book, because in doing so you would be trespassing on the author's copyright as well as the licenses she granted her publisher. You also can't republish a piece of a copyrighted work, so you're not allowed to drop a chapter of Twilight into your book.  In the United States, copyright arises at the moment of creation, although the right to prosecute a copyright claim in court does not arise until after a copyright is filed with the federal government. The same is true in many other countries, but not all.  There are plenty of places where copyright only arises when it is issued by the government, and there is no truly global copyright law, so be cautious about tossing your work around globally.

The United States recognizes an exception to copyright called "fair use." Whether a use is fair "is an open-ended and context-sensitive inquiry” Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013), which is a legal way of saying "we know it when we see it."  U.S. statutory law does, however, recognize a non-exclusive list of four factors that inform whether a given use is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.

“In considering the first statutory factor, the primary inquiry is whether the use communicates something new and different from the original or otherwise expands its utility, that is, whether the use is transformative.” Fox News Network, LLC v. Tveyes, Inc., 883 F.3d 169, 176 (2d Cir. 2018). The second fair use factor (nature of the work) requires an analysis of “(1) whether it is expressive or creative, with a greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished, with the scope for fair use involving unpublished works being considerably narrower.” Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99, 117 (2d Cir. 2021). The third fair use factor (amount of the use) requires consideration of “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). In assessing the final factor in the fair use inquiry (effect of the use,) "we ask not whether the second work would damage the market for the first by, for example, devaluing it through parody or criticism, but whether it usurps the market for the first by offering a competing substitute.” Andy Warhol Found., 992 F.3d at 120.

Plagiarism is different.  True plagiarism is an ethical, not a legal offense and is enforceable by academic authorities, not courts. Biswas v. Rouen, No. 18-CV-9685 (S.D.N.Y. 2019). Black's Law Dictionary claims that "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." Kindergartners Count, Inc. v. DeMoulin, 249 F. Supp. 2d 1233, 1251 (D. Kan. 2003). Some courts and most academic journals, however, expand that definition to include not just words, but also ideas. See, e.g., Lionel S. Sobel, The Law of Ideas, Revisited, 1 UCLA Ent. L. Rev. 9, 96 (1994) (defining plagiarism as “[t]he copying of ideas or expression of another author and using them as one's own work”). Plagiarism is thus both broader and narrower than copyright infringement: (1) directly copying someone's work without attribution is a violation of their copyright and is plagiarism; (2) directly copying someone's work with attribution is still a violation of their copyright, but is not plagiarism; (3) copying someone's ideas without attribution is not a violation of their copyright, but is plagiarism.

Importantly, the idea of fair use generally applies to plagiarism as well as to copyright. For instance, under the broadest possible definition of "plagiarism," substantially every book would be plagiarized because it's basically impossible to write without reusing at least one existing trope or genre, which are themselves 'ideas.'  No one can meaningfully accuse you of plagiarism for using a trope, and of course accusing someone of plagiarism because they've written in a given genre like 'romance' wouldn't pass the laugh test. There are also some canonical works that are so well-known that reinterpretations of them aren't generally considered plagiarism. Most people wouldn't call Bridget Jones's Diary or Bride and Prejudice 'plagiarized,' for instance, even though both are beat-for-beat duplicates of Jane Austen's Pride & Prejudice

And, like copyright, including a short quote from a more famous work, particularly when its source is well-known, is generally not considered plagiarism: an author whose female lead tells her boyfriend that hell hath no fury like a woman scorned, isn't committing plagiarism both because we all know the original author and, also, because the short quote falls within the rules for fair use (although the cliche would probably be bad writing.)  A random quote probably pushes the line, however, because the reader won't recognize it as a quote or homage.  An author whose fantasy protagonist says come, go with me: I will go seek the king is coming much closer to plagiarism because it's a quote from a work of fiction, the quote isn't really transformative of the original, and few readers will recognize the quote as from Hamlet Act II Scene 1.  (NB: Shakespeare's work has fallen into the public domain in most countries, so even a direct copy of one of his plays wouldn't violate his copyright, but would still be plagiarism.)

If you've read to here and still don't know whether your work runs afoul of copyright or plagiarism rules in your markets, consider asking an editor for their opinion before you publish.  You can also let critiquers know that you're worried and ask for their opinion.  Happy writing!

6 Comments

Texasheat

“If you steal from one person it’s plagiarism, if you steal from a hundred people it’s research… I do a lot of research”. – GRR Martin :grin:

Oct-19 2021

Grutar

On a slightly related topic, how do you relate to books being published that are similar to your WIP? I tend to avoid them in the early days and let my own ideas solidify. But does there come a point where you have to read it to find out if you are unintentionally too similar?

Oct-19 2021

Rellrod

Great article, Edwin – clear and helpful!

Rick

Oct-27 2021

Kalto

What you’ve got is great but you haven’t touched on one very important area - music. It seems to be that quoting a line from a book (one of thousands of lines) is okay. Quoting a line from a song’s lyrics (one of a relatively few lines) is problematic. In some cases the title of a song can be trademarked, so you have to be careful using it.

Nov-10 2021

Jewells64

As an author and an engineer I had to research the legal ramifications of copyright violations and patent infringement, and what is germane is the act of selling. I can copy at will from copyrighted texts, but I violate the author’s copyright when I sell it for my own. It’s similar for patent infringement. I can construct a patented machine, but only when I sell it do I infringe upon the inventor’s patent. Music copyright infringement is similar, but a bit different in that songs consist of music and lyrics. They go together, so the act of infringement gets complicated. If I make a record of a copyrighted song and sell it, then I must pay royalty to the composer and lyricist. If I attach all the lyrics to new music and sell it, I must pay royalty to the lyricist, but not to the composer. There is a big question left hanging. If I use all or any significant portion of lyrics in a story, I am not using the lyrics in a musical sense, so fair use may be granted. If the lyricist sues me for infringement, we’re going to end up in court. As I say, the law is complicated. Lotsa luck.

Dec-30 2021

3dwin

This is not correct. Copyright protects a work regardless of whether it is being copied and sold, copied and given away for free, or copied and kept for personal use. That’s why copyright holders are able to file claims against free filesharing services like Bit Torrent and Napster. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1222 (C.D. Cal. 2007) (“The public interest in receiving copyrighted content for free is outweighed by the need to incentivize the creation of original works.”)

Courts have been pretty clear that "to establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). There’s no additional element showing proof of sale or gain.

Music follows the same analysis as any other copyrighted work, but @Kalto is right that, because there’s so much less content to most songs, each individual portion of it is entitled to greater protection than a similarly sized portion of, say, a novel. As a result, courts will look at not just the amount of music that’s copied, but also the relative importance of the copied music to the original work.

Taking Taylor Swift’s Shake It Off, for example, nobody can claim a copyright to the term “shake it off” even though it’s the title (and therefore an objectively important part) of the song, because it’s in common usage. Ditto the line “haters gonna hate” even though it’s a piece of the chorus, which generally receives greater protection than other parts of the song because, again, it’s in common usage.

The spoken word section, however, is not in common usage, is important to the song because of how it stands out, and would likely then be entitled to enhanced protection. As a result, if one of your characters told another “Just think. While you’ve been gettin’ down and out about the liars and the dirty, dirty cheats of the world, you could’ve been gettin’ down to this sick beat!” it would almost certainly be deemed a copyright violation.

Why, then, is it not a copyright violation for me to reproduce the same thing here as an example? Fair use, as noted in the original blog post.

Dec-30 2021
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