Sunday, September 03, 2006

Plagiarism or Infringement?

Copyright 2006 Tonya M. Evans-Walls, Esquire. All rights reserved.
Individuals may copy this post for noncommercial use without permission; provided that this post is used in its entirety and carries this copyright notice and the following link back to this blog: All other uses will be considered unauthorized and infringing and prosecuted to the fullest extent of the law.

By posting a comment to this blog, you grant to Tonya M. Evans-Walls and Legal Write Publications an irrevocable non-exclusive license to display, reproduce and distribute such post throughout the universe. All bloggers should contact the individual blogger to republish his or her post before copying any comments at this blog. defines plagiarism as a piece of writing that has been copied from someone else and is presented as being your own work, or taking someones words or ideas as if they were your own. Were all familiar with the concept from high school or college. A paper or project is due at 9:00 a.m. on Monday; but at 9:00 p.m. the night before, the student has barely typed the first word. Panic sets in and, perhaps, situational ethics takes hold. Whether overwhelmed, imprecise, or just plain lazy, the student takes a bit from here and a bit from there, and soon a finished product appearsone whose words or thoughts are not 100 percent originaland the student presents it as his or her own work. Thats plagiarism.

But plagiarism is not just for pimple-faced students anymore. Its gone high tech now. I am sure countless high-powered execs and law partners have presented the words of someone else as their own. And lets not forget the many scandals involving journalists, which seems to me even more onerous since, at least in theory, a journalists entire profession rests on intellectual honesty in writing and reporting about our world. There was the infamous New York Times scandal involving the writer Jason Blair; other problems at that paper involving Charlie LeDuff and Bernard Weinraub; Jack Kelley, who resigned from USA Today the list goes on and on.

And its never been easier to find and copy information on any topic because its available online 24 hours a day, 7 days a week, 365 days a year. It has also never been easier to hide intellectual theft. The Internet has provided access to innumerable bits of information that can be cut and pasted into a word document and claimed as ones own. And the vast breadth of this information can make it pretty difficult to ferret out the dreaded plagiarizers.

Plagiarism is a white-hot industry too, especially for those who promote and sell information to those who are willing to pay top dollar to avoid having to do the work themselves. A simple Internet search yielded more than 418,000,000yes, 418,000,000 hits for term papers available online. Thankfully, a war on plagiarism has been waged by organizations like and sites like, which compares text against millions of documents available on the Internet and against a database of some fifteen million other documents to counteract instances of this plague on education.

Of course, plagiarism plagues the book-publishing industry too. In June 2006, I released a podcast about one such ugly incident: KaavyaGate. Kaavya Viswanathan, who was an undergraduate enrolled in Harvard at the time, signed a big-time six-figure publishing deal with Little, Brown and Company for her book How Opal Mehta Got Kissed, Got Wild, and Got a Life. Little, Brown published the book in April 2006, and soon pulled it from the shelves amid a plagiarism scandal uncovered by Harvards school paper, the Harvard Crimson.

Initial reports found that passages in Viswanathans book bore a striking resemblance to various passages in two books written by Megan McCafferty. In fact, the paper reported that one fourteen-word passage from McCaffertys book Sloppy Firsts appeared word-for-word in Viswanathans book. The paper detailed other passages that were almost exactly the same in the two authors works and posted the information on its Web site.

As if that werent enough, the New York Times conducted its own investigation and uncovered yet a third instance of plagiarism with several instances of character descriptions, concepts, and plot lines that were almost the same in Viswanathans book and in Can You Keep a Secret? by Sophie Kinsella, instances that were too similar to be coincidental. And an investigation by the Boston Globe discovered that Viswanathans book showed even more instances of plagiarism from Meg Cabots book The Princess Diaries.

What was Viswanathans explanation? Well, in the case of McCaffertys work, Viswanathan called it internalizing McCaffertys voice. But nearly everyone else, including the publisher, called it plagiarism; and I suspect the publisher wants its $500K advance back. DreamWorks, which had optioned the film rights to the book, dropped the project as well.
This likely will be a hardand expensivelesson learned for what appears to be one of the most egregious instances of plagiarism weve seen recentlyJason Blair notwithstanding. Expensive not just in terms of money but also in reputation, honor, and pride. I think intellectual integrity is important. Words have power and should be used properly to communicate, to empower, and to inform, not to get over and make a buck.

Now, some people are confused about the difference between plagiarism and copyright infringement. Think of it this way: All plagiarism is infringement, but not all infringement is plagiarism. The reason is that copyright owners hold a bundle of rights. Copyright owners have the right to copy, distribute, make derivative works from, perform, and display their work; and to allow or prevent others from doing so regardless of whether proper attribution is given. And, contrary to popular belief, there is no set number of words that can be used without permission. So if you are using someone elses copyrighted work in your own, and no fair use exception applies, you should seek permissionnot just properly attribute the work to the owner. Attribution is a good start, but by itself its not enough to avoid infringement.

So someone can actually copy anothers work, say Ive copied this from Patsi Pen, and still be liable for copyright infringementagain, depending on the fair use analysis and assuming the work is not in the public domain. But plagiarizers dont even bother to properly attribute the borrowed text. They simply claim that all ideas and thoughts as expressed on the page (or computer screen) are original. Even if the plagiarizers do not actually state that they are expressing original ideas in a literary work, the lack of such statements does not remove the taint of plagiarism.

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And continue to write and shine!

Tonya Evans-Walls, TME Law