Plagiarism v. copyright: ripped off by the book

19th-century actor Daniel Terry as Sir Fretful Plagiary, in Richard Sheridan’s “The Critic”

I recently began work on a book about plagiarism and the law. Given the subject’s lively controversy in this digital age of “everything’s up for grabs” – consider the lawsuit against Led Zeppelin for supposedly appropriating the music to “Stairway to Heaven”; the resignation of a member of the Toronto District School Board amid accusations that he had plagiarized his Ph.D. thesis; allegations that Globe and Mail columnist Margaret Wente had appropriated the work of others; and many instances in the academy, including my own experiences with plagiarism by my law students – it seems a good time for such a work, from a specifically legal point of view, on this fascinating subject. Of course, one of the first matters I have to consider is the distinctions between plagiarism and copyright violations.

Plagiarism is passing someone else’s work off as your own. If we photocopy a story by J.K. Rowling without her permission but with her name still attached, we infringe her copyright in the work but we are not plagiarizing it. If we photocopy a song by Richard Strauss and replace his name with our own, we plagiarize it but do not violate his copyright: the song would be too old for copyright protection (assuming that it had not acquired a new copyright by being edited heavily and recently, perhaps, by scholars purporting to have just found Strauss’s letters about the song, or a new manuscript of it[1]). Justice Gonthier correctly notes, “Generally, copyright enables the owner to prevent the unauthorized plagiarism and distribution of an original work. It is therefore these acts themselves that are prohibited, without regard to their purpose, be it mercenary or otherwise.”[2] To put it directly, plagiarism can be copyright infringement, but they are not the same thing.

In fact, the justice himself goes on to confound the two: “[I]nfringement of a work, in its most common sense, is synonymous with plagiarism or unlaw­ful appropriation. … Reproducing a work … amounts to plagiarism and constitutes an infringe­ment of the rights of the copyright owner.”[3] Again, people often infringe without plagiarizing, because they don’t claim the copyrighted work as their own; infringement is unlawful use, period, of that work (whether you take credit for the work or not), where plagiarism is appropriation of voice, like identity theft; unless it constitutes some other separate offence at the same time (copyright infringement, conversion, fraud, etc.), generally it is not illegal.

Then again, we can plagiarize without infringing if we appropriate ideas or data.  Copyright does not extend to those. Which brings me to a painful example from my own experience.

Decades before the publication of Simon Winchester’s The Meaning of Everything, I proposed to a producer at a national radio network that I create a “biography of the Oxford English Dictionary.” The producer responded that he would consider the project. When he did not reply to my follow-up correspondence, I assumed that he was not interested. I never heard from him again. A few months later, I switched on his program to hear “The Oxford English Dictionary: A Biography,” written and narrated by someone else.

At the time, I was concerned that making a fuss would have soured my opportunities for other writing and broadcasting work. So I fumed in silence. It occurs to me these many years later that I might have made a legal claim that, while copyright existed in neither the idea nor the title, the broadcaster’s appropriating the two together should attract sanction at law: cumulatively, there was a work-product capable of infringement. The producer had taken not just my idea, but my proposed approach, which did not concern simply the OED’s place in lexicographical history (a documentary idea), but its “personal” lifeblood – its conception among its “fathers,” its arduous development, and its continuing influence. In appropriating this and the associated title, the producer filched not just my idea, but its expression, which copyright law protects.

As a writing career these days entails enough of a battering without having your ideas hijacked, besides, the personal and ethical violations continue to chafe, many years later. It of course was never about the small sum of money I might have been paid; it was about the principle – the blatant disdain for professional ethics – and the loss of professional opportunity.

[1] See, e.g., Jeffrey Miller, “Miami J’yce counsel on the lookout for synteresis,” Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life (Toronto: ECW Press, 2003) at 139-44 (described on this website here).

[2] Théberge v. Galerie d’Art de Petit Champlain inc., [2002] 2 2 S.C.R. 336 at 388, Gonthier J., in dissent.

[3] Ibid. at 393, 398. The defendant gallery had bought reproductions and lithographs of Théberge’s paintings and lifted them onto new media. It was not passing the works off as those of anyone or anything other than Théberge.  The majority found the use to be lawful (non-infringing).

**If you’d like to be notified of each new posting, let me know via the “contact” page and I’ll put you on my e-mail list.**