Shades of Word Theft and Plagiarism

May 29, 2008
Forum organized by Jude Berman and Karen Asbelle
Notes By Wendy Moseley and Karen Asbelle

Is plagiarism on the rise? Some editors have noticed an increase, especially as a wealth of material can easily be taken from the Internet, inadvertently, casually, or intentionally.

Robert Pimm, an experienced literary attorney, believes all forms of "borrowing" are more frequent because the Internet provides free and easy access to so much material previously tucked away in the stacks at libraries. According to Pimm, there is a debate now about whether this "borrowing" is wrong. While creators desire total protection of their work as their property, Internet "sharers" argue that the need for free and fast exchange of all information trumps such "property rights." Some scholars at Stanford suggest wealthy corporations have co-opted intellectual property law, changing its character from the protection of individual artists to the protection of corporate profits. Expensive and intriguing lawsuits over plagiarism are increasing, because poor legal structures currently exist to deal with the changing landscape. The debate over intellectual property law may result in changes in the future, but for now, what does an editor need to know when faced with suspicious content?

Copyright Infringement vs. Plagiarism

There are differences between the two, so it's important to understand first what a copyright entails. Copyright covers five exclusive rights: reproduction, distribution, performance, display, as well as any derivatives of the work. Using any of these rights without permission of the copyright owner (notice that the registered copyright holder may not necessarily be the author or creator) is copyright infringement.

Under current U.S. law, copyright adheres once a work is fixed in tangible form. To establish copyright, the author need only place a "c" in a circle, together with the date and author's name, on the work; no registration is technically required. However, to have any standing in court, a work must be registered. And a copyright must be defended continuously against infringements wherever they may occur or else risk losing its validity after time to common use. For individuals, rights created by that little (c) will exist for the life of the author plus seventy years; for corporations, rights exist for ninety-five years from the date of creation.

A copyright that is registered with the U.S. Copyright Office within ninety days of "first publication" of a work entitles the copyright holder to bring suit for damages from infringement (which must be proved) at $150,000 per infringement, plus all legal costs and fees. Copyright protection also includes injunctive relief, which could prevent the publication of a work found to be an infringement.

Therefore, Pimm advises alerting your client to the need to locate and contact the copyright owner (through publisher or author, if necessary) to obtain permission before using any copyrighted material. There are online permission services, and Pimm suggests using California Lawyers for the Arts (http://www.calawyersforthearts.org) as a resource for obtaining a copyright holder's permission or for mediating in a copyright infringement case. Pimm recommends always using the permission form provided and approved by the copyright holder to avoid any dispute later.

Plagiarism, in contrast to copyright infringement that violates rights, is also a matter of fraudulent use of material that is presented as someone else's work. Pimm identified several types of plagiarism: direct copying of another's words and ideas; paraphrasing of another's words and ideas; claiming another's ideas or theories as one's own; failing to make proper attributions or source citations; making attributions but without any source citations; creating fake or inaccurate attributions or citations; even copying one's own previously published work that could involve a breach of contract for work expected to be new. Be aware, too, that your client will not avoid a charge of plagiarism simply because the "borrowed" words or ideas are in the public domain or the work from which they are taken is not protected by copyright--it is still plagiarism.

Discovering A Problem

You may be alerted to potential plagiarism by a break in your author's voice (tone), or perhaps a sudden switch to typescript that looks suspiciously identical to a familiar Internet information site, to cite a few examples. If you discover plagiarism, whether or not you know it's intentional, you as editor can seize a valuable opportunity to neutrally and professionally inform your client about what you have found, and about how to proceed correctly to make the proper adjustments before you assume any lack of cooperation and consider the option to walk away. A matter-of-fact approach might be to say "According to the guidelines, I think this section needs a little work...looks like a citation was missed in haste. Here's what we should do." Or, you could mark the section with "Oops, missing citation here? Need to add reference in the following format..."

Alerting Your Client

Your client may not know that he or she is infringing unless and until you call attention to the problem. If your client does not realize he or she is plagiarizing, your apprehension of and remedy for the problem may be appreciated all the more. However, with either copyright infringement or plagiarism, "intentionality" is not required for a successful claim, and your client will be liable all the same. Pimm advises editors to point out problems and educate the client about the need for attribution. The use of another person's work without permission or citation can be considered fraud, theft, a breach of contract, or a serious academic crime. At the least, it can result in academic sanctions and a sullied reputation. If the work is copyrighted, its unauthorized use can subject your client to legal action. Once you have alerted the author or client to the problem and possible consequences, do not acquiesce by incorporating any "borrowed" work without attribution or citation.

Use A Written Agreement

Opinion and law may be in flux regarding plagiarism in this era of the Internet with its volumes of published information and its attendant "borrowing." But, as Pimm pointed out, litigation is good only for lawyers--not editors! Without knowing a definitive answer to the question of whether you, as editor, are responsible for your clients' plagiarism, the best defense is to always protect yourself from the start with that written agreement and to take the presented opportunities to inform and advise your clients as appropriate.

Bob Pimm, literary attorney and counselor-at-law, has expertise in all aspects of the book publishing industry. He has valuable, firsthand knowledge of book industry retailing, distribution, small press publishing, and literary agency. Bob has worked at Barnes & Noble, Ingram Book Company, small press publishers, and with independent booksellers throughout the U.S. He is a member of the Authors' Guild and the National Writers Union, and is a board member of California Lawyers for the Arts. He has written articles and book chapters on the legal and business aspects of the book publishing industry, and is on the publication board for Entertainment and Sports Lawyer.