Allegations of plagiarism and copyright abuse have rocked the art world. Our panel debates where fair use ends
The last weeks of 2011 were littered with debates over the originality of high-profile published work from spy novels to political cartoons — and the supposed failure of prominent artists and creators to cite their source material. In the coming year, we’re likely to see more pitched battles related to plagiarism and copyright infringements — not least the much-buzzed-about appeal of artist Richard Prince.
Cases of alleged plagiarism or copyright infringement are rarely black-and-white. We asked a diverse group of commentators — including journalists, lawyers, psychologists and writers — to answer our questions about what exactly plagiarism is, how accusations of plagiarism should be addressed, and whether it’s possible for artists to copy others’ work unconsciously. Their thoughts are below.
Jonathan Zittrain, professor of law, Harvard Law School
The law touches on plagiarism primarily by restricting copyright infringement and fraud. Copyright infringement, like plagiarism, entails copying (often word for word) someone else’s expression. But they’re not the same. The essence of plagiarism is to lie about having copied something: passing off someone else’s work as your own. In the U.S., copyright infringement centers on the copying, not the attribution (or lack of same), which is why declaring where a copied work comes from could forestall a claim of plagiarism while making copyright infringement seem that much more willful. Unconscious copying may still run afoul of the law, as shown in the case of George Harrison being sued after 1969′s “My Sweet Lord” sounded an awful lot like the hit 1963 single “He’s So Fine.” The court found that Harrison had indeed copied the work — but credited that he didn’t realize he’d done it. (He still had to pay up.)
All this is making copyright trickier for jointly authored (or crowd-sourced) works. But plagiarism remains elemental: You should say where your ideas or text comes from, both so you aren’t representing others’ ideas as your own, and so that readers can follow the bread crumbs back to original sources so they can learn more about the ideas you’re drawing from in your own work.
Alan Brown, professor of psychology, Southern Methodist University
We all gather an enormous amount of information each day, and our brain usually “tags” each piece with its source. However, we sometimes remember things that fail to be linked to where we learned them, and we mistake the information for our own.
I suspect that we all suffer from occasional source amnesia, which leads to unconscious plagiarism. This is unintentional, and outside of our conscious awareness. A common experience to which most people can relate is sitting with a group of friends and tossing around ideas — solutions to a political problem, where to go to eat dinner, the best movie line ever. Someone brings up a point that you just said, and looks puzzled when you say “Hey, that was my idea!” They blatantly steal your idea in front of you, but don’t seem to have a clue.
While others are talking, we often just half-listen as we try to think of what we would like to say. During this “half here/half not” period, your brain is still absorbing and storing what was said, but you might not be aware of it.
When most of us copy others unintentionally, there are minimal consequences beyond irritation on the part of the plagiarized individual. However, when a scholar or celebrity does so, this catches people’s attention. George Harrison inadvertently plagiarized a song, Sigmund Freud copied a theory, and Helen Keller stole an entire story that she later published. (This article summarizes some of these cases, briefly, at the beginning and end.)
Tim Perfect, professor of experimental psychology, University of Plymouth
Imagine that two people have a conversation in which they exchange a number of ideas. Subsequently, one of the pair could unconsciously plagiarize their partner’s ideas in two ways. In trying to recall their own ideas, they may accidentally misremember their partner’s ideas as their own. That is, they may succeed in generating a memory, but be wrong about where it originated. Alternately, they may try to come up with some new ideas, but accidentally reproduce an old one. In this case, they are confusing a memory with a creative thought (and they can even plagiarize themselves: famous psychologist B.F. Skinner bemoaned this occurrence as marring his later academic years).
Psychological research demonstrates that such errors are ubiquitous. Numerous experimental studies have demonstrated both forms of plagiarism, with typical rates of plagiarism at around 10 percent of the ideas recalled or generated as new, and participants in such studies rarely avoid such errors entirely. Both forms of error require a weak memory: If memory for the original conversation is too good, then plagiarism can easily be avoided.
Research also shows that the two kinds of error can be influenced by different factors. Rates of unconscious plagiarism during recall are dramatically increased if a person subsequently tries to improve an idea that they have heard. In studies where people improve their partner’s ideas, plagiarism rates can climb to over 35 percent of what is recalled. But plagiarism isn’t more likely for highly rated ideas, or for ideas improved by other people; it is the act of improvement itself that creates the sense of ownership.
In contrast, plagiarism during a creative task is actually reduced following improvement, because improving an idea makes it more obvious that the idea is old. Instead, plagiarism during creative tasks is influenced by the status of the source of the idea. In studies when people hear ideas from two different people, one expert, one not, they are twice as likely to plagiarize from the expert than from the novice. This happens even though there is no objective difference in the quality of the ideas from the two sources. Thus, the evidence suggests that people don’t plagiarize good ideas so much as ideas from good places. Imitation truly is the sincerest form of flattery!
Psychological studies such as these demonstrate that people often plagiarize the past unknowingly: it is an inevitable consequence of the faulty nature of human memory, and as such does not reflect a moral fault. This is not to argue that all plagiarism is accidental, but it is the case that not all plagiarism is deliberate.
How then are we to distinguish between accidental plagiarism and deliberate fraud? We can never be completely certain in an individual case, but we should recall that human memory is very good at remembering the gist of past events, while details are easily lost. This applies to both genuine recall and plagiarism. Given that unconscious plagiarism occurs when memory is fairly weak, it follows that it is more likely that the gist will be plagiarized than the exact details. Whenever the claim of plagiarism rests upon the exact form of the idea (the adjectives used, or the order of a sequence of ideas), then this should start to ring alarm bells.
John Cole, president of the American Association of Editorial Cartoonists
Plagiarism in cartooning is really no different from plagiarism in other creative and academic pursuits: it’s the act of directly appropriating someone else’s work — be it art, writing, music, photography, design or what have you — and passing it off as one’s own. Short and sweet, it’s intellectual theft.
There are clear-cut cases of this, such as the recent episode involving Tulsa cartoonist David Simpson, who basically traced some old cartoons by the late, great Jeff MacNelly, applied new labels and then signed his name to the finished product. The recent case involving Columbus Dispatch cartoonist Jeff Stahler wasn’t so cut-and-dried; indeed, some still aren’t convinced that what he did (allegedly swipe a years-old New Yorker cartoon idea) amounted to straight-up plagiarism. But Jeff, whose work I’ve admired for many years, reportedly had a track record of producing cartoons and dialogue that looked suspiciously similar to the work of others. Given his resignation, the case seems to be closed.
Divining plagiarism in editorial cartooning is dicey simply because the craft traditionally relies on stock symbols (the GOP elephant, Democratic donkey, Wall Street fat cat, etc.) and common visual metaphors (the Titanic, the Hindenburg, Grant Wood’s “American Gothic,” the grim reaper, the flag raising at Iwo Jima, etc.) that are quickly and easily understood by readers. The challenge for any cartoonist who uses these devices (or not — many great cartoonists don’t use them at all) is to do so in a way that’s unique to one’s own ideas, style and voice.
This is a tall order, given that on any news day there are something like 70 to 80 cartoonists drawing about, for example, Newt Gingrich leading the polls or Mitt Romney’s $10,000 bet or Barack Obama’s latest Hawaiian vacation. There will be and are rare overlaps of ideas and images. Isolated cases of this are correctly dismissed as “great minds thinking alike,” which is something that every daily political cartoonist who’s been at it long enough has experienced.
When isolated cases begin adding up to a pattern, however, flags start flying and bells start ringing. This doesn’t happen often — indeed, Simpson’s dismissals from the Tulsa World and later Urban Tulsa Weekly were the first anyone had heard of in many, many years. That it was followed so closely by Stahler’s resignation is all the more unusual, to say nothing of unfortunate.
I’m not sure there’s a better way to police plagiarism aside from the current system. For its part, the Association of American Editorial Cartoonists added a new bylaw in 2009 holding members to a pledge not to engage in plagiarism and providing for the removal of any member who’s found to be doing otherwise. (It should be noted that neither of the recent cases mentioned above involved a current association member.)
Kelly McBride, senior faculty, Ethics, Reporting & Writing, Poynter
Plagiarism is a narrowly defined act that is often misunderstood. When a writer misappropriates the words of another writer, be it a sentence, a paragraph or a page, he has plagiarized. This is true in all writing, including journalism, creative writing and term papers. It is a serious and specific act of theft.
Yet the greater problem often confused with plagiarism is the notion of intellectual honesty. I often hear teachers complain that in this digital era of sampling, open sourcing and cutting-and-pasting, people don’t understand how to reference intellectual property. Sometimes they do and sometimes they don’t. Certainly there are many people who simply copy the work of others and call it their own. But there are also many creative communities that have collective standards for crediting others, while passing along, advancing or transforming an original idea.
Take Twitter’s RT (retweet) or MT (modified retweet). There you have a widely accepted method for acknowledging the work of another. Like the formal footnote or the informal tip of the hat, communities have and still are forging pathways to foster intellectual intelligence.
When we focus too narrowly on the issue of plagiarism, we ignore the bigger issue of intellectual honesty. Whenever you are part of a creative process, as a writer, a visual artist or composer, the most significant signal you can send your audience is a thought trail that lets them transparently see the forces that influenced you as you made your piece.
Emily Bell, director of the Tow Center for Digital Journalism at Columbia University
The core of what plagiarism is remains undented by the digital publishing environment. Copying out the words of others and passing them off as your own is still what it always was; wholesale plagiarism is a sacking offense in most newsrooms. It is of course much easier to detect now, thanks to Google text search, but beyond the clear example of screeds of lifted text or images passed off as your own, the issue of who is a plagiarist is also a little more porous at the edges than it was.
In digital journalism, one of the most valuable functions you can perform is to aggregate and link to the content produced by others. We do however also see the problems of “over aggregation,” where credit and sourcing is not clear enough, links are missing, attribution is fuzzy and where the idea of “fair use” is enormously stretched. Is this plagiarism or enthusiastic aggregation?
The increased ease of detection of plagiarism is offset against the temptation to “over aggregate.” As for the broader context of taking ideas and presenting them as new, well, that happens all the time, sometimes knowingly and sometimes accidentally. It is an area where journalism is still thrashing out standards and best practice; there is a sort of arms race of transparency going on in digital news filtering at the moment – who did what first and when. I can’t help feeling that the idea of a plagiarism algorithm is not too far away.
Jeremy Duns, spy novelist and outspoken blogger
Plagiarism is the theft of someone else’s ideas.
There are degrees, of course. The historian Stephen Ambrose got in trouble because it was found that while he had footnoted his sources, he had sometimes simply repeated the exact wording of them in his text without using quote marks, giving the impression that he had written those precise words. That’s perhaps borderline plagiarism, and depends on how often it has been done and how egregious the particular examples are. There are also examples of influence that are borderline, for example, if a film or book uses the same premise as an earlier work without acknowledging it. It then becomes a matter of how precise the similarities are. For example, the copyright holders of the Cornell Woolrich short story that formed the basis for Hitchcock’s “Rear Window” sued the makers of “Disturbia” in 2007, but the claim was rejected as the judge felt they were not similar enough.
On the other end of the spectrum, I think there are cases that are black-and-white. One is Quentin Rowan’s “Assassin of Secrets,” the spy novel published by Little, Brown last year, which I read, loved and praised to the skies — only to discover from reading a comment by a James Bond fan online that it plagiarized some of the post-Fleming Bond novels. When I started looking at it in greater detail, I found that the whole book had been stitched together from passages taken from a range of spy novels published in the last 30 years. He’d done it so that it read like a fun postmodern take on the spy thriller, and it fooled me, but that’s a black-and-white case: I found one scene that went on for six pages, and apart from changing the proper nouns and the occasional word, was identical to a scene in John Gardner’s Bond novel “License Renewed.” Another case that I believe to be black-and-white is that of Lenore Hart’s “The Raven’s Bride,” which I have written about at length on my blog. [Editor's note: Lenore Hart and her publisher, St. Martin's Press, deny that any part of "The Raven's Bride" was plagiarized.]
What’s the difference between borrowing — or unconsciously repeating — a phrase or idea, and copying wholesale? Well, just a matter of scale. I think if you were to make a film about a man trying to find another man, that’s not an idea that belongs to anyone. If you set it in the jungle, you might be unconsciously inspired by Conrad’s “Heart of Darkness.” That’s fine, too, of course. It could also be conscious:
“Apocalypse Now,” for instance, is an adaptation of “Heart of Darkness.” But say someone wrote a film script now, and it was about a British army captain in Kenya in the ’50s during the Mau Mau uprising. Well, fine. His mission is to go into the jungle and find a colonel who has gone native. Uh-oh. The colonel is called Curtis, and he is fond of quoting Ezra Pound. Well, they’ve changed Kurtz to Curtis and T.S. Eliot to Pound, but they’ve still plagiarized “Apocalypse Now.” In fact, you can stop at the going into the jungle to find the missing colonel, I think. There are matters of degree, but I think most people can recognize the difference between being influenced by someone else’s idea, and stealing it.
Whose responsibility is it to follow up accusations of plagiarism? Good question! When I realized that Quentin Rowan had plagiarized his novel, I informed his publisher in the U.K. at once. They informed their colleagues in the U.S., who had just published the book (it hadn’t yet come out in Britain). Little, Brown acted very responsibly, in my view: they issued a press release and withdrew “Assassin of Secrets” from sale within three hours. That’s what should have happened, and I’m glad it did.
Since I got fooled by Rowan last month, several other possible cases of plagiarism have come to my attention. I wrote about Rowan on my blog, explaining why I had removed a recent question-and-answer session between me and Rowan from it, and how and why I was fooled by the book. I also included some responses he had given me by email about why he had done this. A lot of people read my blog about it, and it was linked to in a lot of articles around the net. As a result, some people started going through “Assassin of Secrets” trying to find all the books Rowan plagiarized. In putting a sentence from “Assassin of Secrets” into Google Books, one of the people reading my blog found that it came up with two other results. One was “The Janson Directive,” a Robert Ludlum novel published in 2002. The other was “True Deception,” a romance thriller by Patricia Waddell, published in 2007 by Tor. So Rowan had stolen the sentence from the Ludlum novel — and so had this other writer, Patricia Waddell. What are the chances of that!
The emergence of this, and several other potential cases — e.g., those of Nigel Cawthorne, Jon and Diane Sutherland and Ross Leckie — has left me with a problem: What to do? In the case of “Assassin of Secrets,” I had a personal stake, as I had endorsed the book and my blurb would have appeared prominently on the front cover of the British edition. I didn’t want that to happen, obviously, but it wasn’t just about that: The guy was a rip-off merchant. He had deceived me, his editors, all the people who worked on that book. And he had stolen from other writers. So I wanted to get the book pulled, but I also felt it was responsible for me to try to do that. I had a way in, because his British editor had sent me the proof in the hope I would give an endorsement. With these other cases, I had no in at all.
Pursuing publishers on matters of possible plagiarism is quite exhausting. It would take a lot of time to go through Waddell, Cawthorne, the Sutherlands, Leckie and whatever examples I’ve forgotten. It is very time-consuming — much more than me doing this interview — so I’m hoping others will join in and help investigate and report these. I think as these cases have been pointed out to me, it would be irresponsible for me to ignore them and shrug my shoulders because my blurb isn’t on their covers. But I’m running out of ideas for how to take on so many cases effectively. So I’d urge your readers to investigate some of these examples. If you can report your findings to the publishers, so much the better — but you may not be thanked by them for it.
Dennis Johnson, publisher at Melville House and blogger at MobyLives
At root, plagiarism is always the use of someone else’s creative work – his or her ideas – without acknowledging the original source. That lack of acknowledgment is key – plagiarism is an act of deception. We’re not talking about things such as fair use.
In practice, plagiarism is two things: one simple and obvious, one not so simple and obvious.
The simple and obvious: Using someone else’s language without quote marks and attribution, or paraphrasing someone else’s language without attribution.
The not-so-simple–and-obvious: Using someone else’s ideas. For instance, Jeremy Duns has accused Lenore Hart of using barely revised scenes between Edgar Allan Poe and his wife that were originally concocted by Cothburn O’Neal for his 1956 novel “The Very Young Mrs. Poe” – i.e., scenes that never happened in reality.
With plagiarism, as with any crime, it’s a question of degree, with the greater degree being more upsetting and consequential than the minor degree. And our culture has always considered intentionality as part of our valuation of a crime (think murder vs. manslaughter), so the question of intent bears on this as well (although it doesn’t change whether the thing is a crime or not).
Thus: The most egregious plagiarism of all would be if you wrote a book that had a key element, and/or multiple instances, of material that you knowingly stole. This is both an ethical lapse (it’s just plain wrong to steal) and a kind of physical crime, akin to stealing money from someone — as (the idea is) you make money on a book, you are collecting money on something that rightly belongs to someone else. For both these reasons, such a work does not deserve to be in the marketplace of ideas or commerce, either one. And certainly other work by the writer in question should be held equally suspect.
Where responses are concerned, it’s first and foremost the responsibility of the plagiarist to [address an accusation of plagiarism], but it’s also incumbent upon the publisher to act responsibly. As a publisher myself, I would always want to speak with the author first, and make no public comment until I had. After speaking with the author and anyone else who can help determine if the charges are valid, the publisher needs to address the situation as promptly as possible. If you’re confident it isn’t plagiarism, you must defend the author with all your might. If it is indeed plagiarism, and it’s significant, you have to say so publicly and weigh withdrawing the book – potentially a devastating, existence-threatening situation for a little publisher such as Melville House. (But not doing so might be equally damaging, and following the moral imperative is the aim.) At the very least, of course, the book must be corrected – sources cited, stolen text removed, whatever. In short, plagiarism can’t be allowed to stand.
Johanna Blakley, managing director of the Norman Lear Center, USC Annenberg
In the fashion industry, plagiarism is rampant. And, while most people will assume that that’s a terrible thing – after all, how can a creative industry remain creative if people are copying one another? – I’m convinced that this is one reason that the fashion industry has managed to elevate utilitarian objects (clothing to hide our naked bodies) to the status of high art.
All creative people are influenced consciously and subconsciously by their environment. But fashion designers are legally allowed to plunder ideas from their peers and from the vast vaults of fashion history because fashion designs do not receive copyright protection. Unlike musical compositions, sculpture, paintings, novels, photographs and films, fashion designs can be copied point by point without legal ramifications. Surprisingly, there are some amazing benefits to this wild free-for-all: Designers are allowed to respond very quickly to the zeitgeist, as it were, incorporating into their work the elements that seem contemporary and of-the-moment, without having to consult lawyers about whether they might be borrowing too much from the work other designers. And for the business of fashion, one happy result is that trends develop, which allow retailers to market new goods to consumers eager to remain current.
Some might assume that if plagiarism were allowed in an industry like fashion, then everyone would end up making the same thing or simply recycling looks from the past. But that’s not how you win the game in fashion. Designers whose work seems “too derivative” do not succeed, while those who manage to maintain a signature style while staying on trend and cleverly riffing on past eras are considered geniuses.
If you think about it, it does take a certain kind of genius to plagiarize well. Knowing when to steal what is an art in and of itself.
Charles Cronin, Music Copyright Infringement Resource, UCLA School of Law
It is easy to identify similarities between musical works, particularly in popular music, which is very formulaic. But these similarities rarely constitute plagiarism or copyright infringement. In general – and to an increasing extent it appears – claims of music copyright infringement are grounded on flimsy assertions of musical — or even minor verbal — similarities typically asserted against works that have been economically profitable.
Is the repetition of ideas and themes over the centuries simply to be expected? Certainly – and copyright law accommodates this by disallowing, through the doctrine of scènes à faire, the monopolization of ideas, themes, genres. Accordingly, it is not possible to obtain copyright protection in musical works for a standard blues progression, “call and response” technique, use of double-entendres (in country-western songs), etc. Copyright protects only original, non-minimal expression that may employ such generic ideas available to anyone.
In terms of the difference between plagiarism and copyright infringement, the former involves an element of deceit not necessarily found in the latter. A plagiarist takes information from another and deliberately attempts to pass it off as his own, whereas one who infringes copyright does not necessarily attempt to pass off the infringed material as his own (e.g. music sampling cases) and in some cases may not even be aware he is infringing someone else’s protected expression (e.g. the George Harrison case).
Despite the deceit involved, plagiarism is not illegal per se. If I copy the answers of a fellow student’s math exam, for example, I have plagiarized and violated academic standards, but have not violated copyright law because the solutions to the math questions are facts and not copyrightable in the first place. Likewise, if I were to copy literary criticism from the 19th century (now in the public domain) and pass it off as my own I would be flirting with academic disgrace but not with violation of law.
How are accusations of copyright infringement followed up? Many claims are brought against well-known performers with deep pockets. While these defendants typically have counsel with a sophisticated understanding of copyright law, plaintiffs in these cases often engage lawyers with little experience or knowledge of copyright who take on such cases hoping for a share of a settlement award from a wealthy defendant.
The U.S. court system tends to be quite indulgent towards even the most specious copyright infringement claims and defending lawyers realize that a persistent plaintiff can be an expensive problem for their client and potentially damaging to their client’s reputation as well. Unfortunately, many music copyright infringement cases are, therefore, settled by defendants “throwing a bone” to opportunist plaintiffs to make them go away. This solution, unfortunately, only fosters more spurious infringement claims.
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