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Plagiarism, the Lastest
Craze
Used Books: Second
Class Rights
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Plagiarism, the Lastest Craze
Copyright 2007 Elaine P. English
Hardly a week goes by without a report of some new allegation
of plagiarism. The latest was a Washington Post article about
a now-deceased London pianist who apparently had plagiarized
recorded performances with CDs sold under her name. Authors
of such stature and success as Doris Kearns Goodwin, Stephen
Ambrose, Ian McEwan, and Dan Brown have all been accused of
plagiarism. First-time author, Kaavya Viswanathan was the
talk of the town last year until Little, Brown cancelled her
book, once the Harvard Crimson reported on plagiarized passages.
Computer technology is increasingly used to uncover plagiarism,
as was the case with the pianist. In that instance, comparisons
apparently found an amazingly perfect (and otherwise, unexplainable)
match of each track to recordings by other artists. Certainly
modern technology may well account for this new wave of interest
in plagiarism. Computer software now makes comparisons quick
and easy. Colleges have been using programs such as Turnitin
for many years to verify student papers and high schools now
use these programs as well. Just imagine what could happen
if Turnitin’s database merged with, say, Google Library?
Also, we now live in such an immediate world where the Internet
is a marvelously effective medium for not only disseminating,
but creating, the buzz about all the latest allegations.
Notwithstanding its notoriety, plagiarism is a serious charge.
It carries grave moral overtones that will readily (and some
might say, rightly) harm the professional reputation of any
creative person so charged. However, to most people, even
writers, plagiarism is a somewhat amorphous concept. Many
writers think it applies only to nonfiction. However, ask
Dan Brown and he’ll sadly show you how much he’s
spent on legal fees defending his fiction. Other writers think
that it has to be an exact copy of both words and ideas before
it can be called plagiarism. I’d say check with Ms.
Viswanathan or her packager; they apparently “borrowed”
from multiple sources in creating How Opal Mehta Got Kissed,
Got Wild, and Got a Life. Some believe if you’re not
doing research, you’re protected, or if you are, all
you have to do is acknowledge your sources and there’s
no plagiarism. Certainly many top authors who came to the
defense of Ian McEwan thought so since he acknowledge, albeit
briefly, Lucilla Andrews’ autobiography as a source
for Atonement.
With the frequent tossing about of the term today, it’s
important for all writers, novelists included, to have a good
understanding of what it really means. Plagiarism and copyright
infringement (the better known claim) are not synonymous.
You can certainly have one without the other. Copyright protects
only the expression of an idea as fixed in some tangible form.
If too much of that expression is copied or closely paraphrased
it can lead to a legal claim for damages.
Plagiarism, by contrast, covers ideas, themes, research discoveries,
scenes, phrases, characters, and other intangible aspects.
Even a work that has fallen into the public domain and has
lost all copyright protection can be plagiarized. Plagiarism
is not, in fact, a legal claim per se; although it can be
the basis for legal claims of fraud, misrepresentation, or
violations of moral rights, and in a publishing context, almost
always is a breach of contract (the warranty of originality).
As esteemed judge Richard A Posner on the Seventh Circuit
Court of Appeals has written, “Concealment is at the
heart of plagiarism.” Or as Nora Roberts succinctly
stated in a recent interview, “it’s theft . .
. calling it your own is stealing.” The Concise Oxford
Dictionary of Literary Terms defines plagiarism as “the
theft of ideas . . . or . . . passages or works, where these
are passed off as one’s own work.” The chief elements
of plagiarism are copying another’s work and passing
it off as your own with an intention to mislead the reader
into believing that it is an original work.
Concealment is not simply a failure to credit the source.
It is an act of deceit, intending to mislead the intended
readers into thinking that the work is original when it is
not. As Judge Posner explains quite eloquently in his latest
The Little Book of Plagiarism [Pantheon, 2007](a resource
I heartily recommend), the reader has to care about being
deceived in order for the deceit to become fraud, i.e., plagiarism.
Parody isn’t plagiarism, because in order for the parody
to succeed, the author must be aware of the underlying work
that is being parodied. For the parody to work, the reader
must know that it’s not written by the original author.
There’s no concealment. Similarly with fan fiction,
the readers know they are not reading the work of the original
author, so there’s no deception, and, thus, no plagiarism.
I recently e-mailed several published authors asking for
their thoughts on the subject. I inquired if it was considered
plagiarism to use archetypal characters and classic myths.
Uniformly the response was “no,” but only if the
author brings sufficient originality to those characters and
plots to make them their own. As multi-published author and
Novelists, Inc. board member, Linda Madl noted, “an
archetype requires a lot of creativity to develop into a truly
engaging and memorable character—easier said than done.”
The Wind Done Gone and the newly released Finn focus on a
similar question. Can you take someone else’s character
and spin off your own story? Certainly if you took the original
author’s character and developed him or her in the same
manner in the same settings as the original tale and tried
to say that your work was original, it would be plagiarism.
However, to take the outline of that character and mold it
in a way that makes it your own to tell a new and different
aspect of the story in your own voice, that’s good craft.
I admit to being a bit taken aback recently when I read in
the newsletter of the Mystery Writers of America about a writing
teacher who encourages students to take another’s novel
and follow it through scene by scene and chapter by chapter
as a recipe to learn how to write. He recommends modeling
the development of characters, dialogue, pacing, action, rhythms,
etc. on this one published work. He claims that when he did
this, by chapter 7 he was so overtaken by his own story that
he stopped paying “nearly as much attention” to
his model. In fairness, by the end of his article, he made
it clear that he wasn’t advocating stealing, but rather
digesting the material so thoroughly that you have made it
your own. But for an inexperienced, struggling author, I think
his method of patterning a single work could be dangerous.
Also he is silent about the marketability of said work. (I’d
be very cautious.)
Linda Madl noted that sometimes authors may feel pressure
because of the tight marketplace to create a specific work
for a specific readership. Linda didn’t suggest this,
but I think perhaps Ms. Viswanathan was trying to do just
that when she got into her troubles. Suggestions like the
ones from the writing coach could be misconstrued as permission
to copy for a lazy or frantic author.
Is it automatically plagiarism if two authors come up with
the same plot ideas, characters, or even character names at
the same time? As New York Times bestselling author, Mary
Jo Putney pointed out, “we’re all drawing from
the same creative unconsciousness,” so similarities
are likely. I know I’m constantly amazed at the waves
of similar ideas I see come in as submissions. It’s
as though, in a given week, everyone decides to focus on stories
about fairies who meet one-eyed trolls, and disabled heroines
another week. There’s no plagiarism involved, unless
someone actually saw the other’s submission and decided
to steal that plot by passing it off as his/her own.
Can plagiarism ever be inadvertent? Here my small sample
of authors split. I’ve certainly heard authors argue
that it can be inadvertent, particularly those who claim to
have photographic memories. (However, if your memory really
is photographic, wouldn’t you also have a photographic
memory of where you got the material and that it wasn’t
yours?) Certainly most authors I know are avid readers. I
can’t imagine that things like phrases, characters,
or scenes don’t float around in their heads from things
they’ve encountered in others’ books. But each
author I interviewed said they have to re-process that information
to make it their own before it is of any value to them. That’s
just part of their writing process—the same way they
would process an event they observed or a bit of conversation
they overheard.
At least one of the authors I interviewed, multi-published
Diane Whiteside who writes both historical and paranormal
romances, said that she specifically does a review with her
well-read critique partners focusing on whether or not her
characters and plots might be too similar to that of others
early on in her outlining of a new book. She said that when
she’s doing world-building for paranormal stories she’s
particularly cautious.
Because plagiarism doesn’t involve the unintentional
similarity but only intentional deception, it’s hard
to imagine how it could be inadvertent. Nora Roberts who several
years ago had a number of her novels plagiarized, probably
said it best, “I don’t understand how anyone can
claim they copied by accident. When it’s possible to
put whole passages of the original side by side with the copy
and the phrasing, the words— dialogue, narrative, description—often
even the rhythm is the same, you can’t ask me to believe
it was an accident.” She went on to suggest that if
you’re a writer, you should have your own voice and
style and pride in your work. I’d say if you focus on
developing those, you should never have to worry about plagiarism.
This article first appeared in the April, 2007 edition
of NINK, the official newsletter of Novelists, Inc.
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Used Books: Second Class Rights
Copyright 1997 Elaine P. English
Many of you must have had this experience. Someone calls
or emails to tell you that they've just seen several of your
books advertised on the Internet. You check Amazon.com (or
one of the other services) for yourself, and YES, there you
are, listed as the author of several books which, according
to the instructions, are available for purchase. You sign
off quite pleased with your discovery only to think days later
-- but half of those titles are out of print! The initial
publishers have long since retired the books and you have,
in fact, reacquired all rights, including copyright. How,
you might ask, can these books still be sold, and (perhaps
most importantly), why are you not getting royalties from
these sales?
The "first sales" doctrine is the answer.
As most of you know, a copyright owner holds the exclusive
right to control six specific aspects of a property she has
created -- its reproduction, distribution, performance, display
and the preparation of derivative works based upon it. The
first sales doctrine, which is embodied in Section 109 of
the federal Copyright Law, is a limitation on those exclusive
rights. This doctrine states that the owner of a particular
copy of a work that is lawfully made under the copyright laws
is entitled to sell or otherwise dispose of the possession
of that copy without needing the authority of the copyright
owner. This is the same theory technically under which a distributor
is able to sell a copy of a book to a retail store and the
store is then able to sell that copy to the consumer (although
the initial royalty paid by to the author certainly is seen
as taking into consideration that chain of sales). It also
is the theory under which you can buy a book and then lend
it to a friend to read, donate it to a charity, or even sell
it to a used bookstore for resale.
The first sales doctrine reflects the basic distinction between
ownership of a physical copy of a copyrighted work and ownership
of the rights in that work. As everyone knows, he who acquires
a physical copy, without more, acquires just that, the copy.
He cannot make copies of his copy, or prepare derivative works
from it without getting the approval of the copyright holder;
however, under the first use doctrine, he is allowed to dispose
of his copy in any way he chooses. The first sales doctrine,
therefore, is a limitation on the distribution right and no
other.
One of the challenging issues of applying copyright to the
computer age asks: how does the first sales doctrine apply
to a lawfully made copy downloaded from a computer? In the
classic printed book situation, when you sold or gave away
your copy, you were left with nothing. In the computer context,
even after you have downloaded the copy onto your own computer,
the original still remains. How should the first sales doctrine
apply?
Without answering that question, since only time and subsequent
court decisions can tell, let me further explain there are
two recently enacted exceptions to the first sales doctrine.
Based upon amendments added by Congress in 1984 and 1990,
the owners of a copy of a sound recording and the owners of
a copy of a computer program may not sell, lease, lend, or
otherwise commercially profit from the disposition of their
copies of those works without the authorization of the copyright
owner. (Both provisions expressly allow the rental, leasing
or lending for nonprofit purposes by a nonprofit library or
educational institution.)
Why this difference in the treatment of intellectual properties?
There is no simple answer. A tension between the rights of
authors (to have their works protected to the maximum) and
the rights of the public to freely receive information underlies
all copyright protection. U.S. laws have never tried to secure
all rights for all times for authors. The laws in other countries
strike different balances. For example, moral rights are strong
in France where the author's property rights in his/her creation
are seen as paramount. Several European countries have enacted
public lending rights by which authors are compensated through
royalties whenever a library patron borrows a book. (Denmark
has recognized such a right since 1946.) But in the U.S.,
copyright laws are generally balanced in favor of public access
and the consumer/user of intellectual properties.
Why then treat sound recordings and computer programs differently?
Well, in both cases a strong argument was made to Congress
that a secondary sales or rental market would so undercut
the commercial viability of sales that there would be no incentive
for creators to make and sell such products. Congress was
convinced and "protective" legislation was enacted.
Should the same be done for books? At this point, the case
has yet to be made that the secondary sales market is so commercially
valuable that it will have any impact on the creation of new
works. Until recently, used books were sold in dusty stores
where potential customers manually searched high and low to
find gems of forgotten works. Computers, however, are changing
that. Not only does Amazon.com offer used books, but web services,
like Bibliofind and the Advanced Book Exchange, now offer
consumers easy access to second-hand books. However, until
such time as there are commercial reasons to change the law,
it seems likely that a used book will continue to be bought
and sold without any limitations and without any further remuneration
to its author.
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