A Question of Morals: The U.S. Approach to Plagiarism, ‘Moral Rights’, and Copyright Infringement

“It was a warm and pleasant day on the beaches of Rio de Janeiro.  The waves lapped at the shore and far off a sea-bird raised its plaintive cries to the sky. She looked up from her book, thinking, ‘Wait, where have I read that that before? …'”

Rather than an irksome daydream on the beach, an author’s nightmare is of having her works — or parts of them—lifted from her control and passed off as those of someone else. That is exactly the allegation that bestselling novelist Nora Roberts brings in her suit, filed in late April in a Brazilian Court, against Cristiane Serruya, a lawyer-turned-author.

Nora Roberts is one of the most popular living American authors. She primarily writes romance novels, as well as police procedural (crime) fiction. Her works are solid sellers, and she has received a huge number of industry awards, as well as having more than a dozen of her works adapted into film and television productions. Hers is the type of market success that every genre author dreams of.

Sadly, with widespread popularity comes risk of infringement—in this case, not of copyright infringement, but a very particular violation of authorial rights.

Infringement in Increments

Interestingly, it is not alleged that Roberts’ works have been copied wholesale. Rather, it’s always a sentence here, a sentence there. But, apparently, there are lots and lots of these sentences, not just (allegedly—also, maybe the ghostwriter (and not the butler) did it) lifted from the works of Nora Roberts but from many other novels and writers as well. 

[Roberts] “Leisurely, he began to loosen her hair, working his fingers through it until it pooled over her shoulders. ‘I’ve wanted to do that since the first time I saw you. It’s hair to get lost in.’”

[Serruya] “Leisurely, he began to loosen her hair, working his fingers through it until it pooled over her shoulders and cascaded down over her back. ‘I’ve wanted to do that since the first time I saw you.’”

Repeat that pattern a few dozen times, and you get the idea of what’s at issue in this case.

(North) American readers should bear in mind that this case could not have been brought under U.S. copyright law—not in its current form. In the United States, we draw a somewhat hazy line between copyright infringement, a legally actionable offense, and plagiarism. Both offenses entail purloining the words of others, but U.S. law treats these types of “lifts” as distinct. If the defendant can convince a jury or judge that what she has done is “merely” plagiarism, then the law will not punish her.

But in other countries, those with copyright structures derived from the Napoleonic Code and the  Berne Copyright Convention of the 1880s, and resulting national laws, the two may overlap more closely—and plagiarism itself may be legally actionable. It depends upon whether the alleged act is seen to infringe on the moral rights (droit moral (Fr.), direito moral (Port.)) of the author. One of these moral rights is the “right of attribution”—essentially, the right to have your name associated with your creation.

The bottom line in this context is that the United States does not have a moral rights provision for text works (e.g., novels) in its copyright law—but Brazil, where this infringement is said to have occurred, does.

Moral Rights in the U.S. Context

U.S. copyright law, coming down from the British Statute of Anne (1710) and revised and reapplied by courts many times since, recognizes these moral rights only to a very limited extent, and that primarily in the domain of the visual arts. The relevant section of Title 17 is generally referred to as VARA (Visual Artists Rights Act of 1990), and pertains only to “works of visual art” such as sculptures, paintings, and photographs. Two of the moral rights recognized under VARA are attribution—keeping the creator’s name on their work—and integrity—which implies that the work is kept whole, and not taken apart or “mutilated.” As a hypothetical example, were the VARA rules extended to text-based works, such as a romance novel, the charge of infringement could be credibly brought when the sentences of the originating work, the novel, appeared in someone else’s novel without attribution. There is currently consideration of some further extension of moral rights on the table in the United States, including a proposed new federal right of publicity. Even were this new right to be implemented, however, the facts alleged in Roberts’ complaint (hypothetically assuming a U.S. context) might still not constitute a cause of action under U.S. law.

This provides us with a perhaps helpful way of approaching the issues in the Nora Roberts case. The allegedly infringing author in Rio didn’t use a tiny portion of Roberts’ sentences, or use them incidentally or in a different context—for example, within a treatise about the most successful style to use in writing a successful romance novel. Instead, Serruya’s plagiarizing uses (if the allegations prove true) may, in the aggregate, be thought of as rising to the level of infringements upon Roberts’ right of attribution due to both their broad extent and the similar context in which they appear, i.e., the publishing of another romance novel of substantially similar plot, premise and structure. A.M.

A. M. Blair, an attorney and legal blogger, suggests that the reasoning in the Kinderguide case (Penguin Random House v. Frederick Colting SDNY 2017) might be apropos here as well. In that case, a judge granted summary judgment to Penguin, Simon & Schuster, and representatives of the estates of Truman Capote, Jack Kerouac, Ernest Hemingway and others, on their claims that Frederick Colting and Melissa Medina were liable for nine counts of copyright infringement via their early learning guides to classic literary works.

Merit Versus Misappropriation

Often (wrongly) attributed to Picasso, the expression “Good artists copy; great artists steal” attempts to get at the notion that some misappropriation should be approved of, in the arts. Maybe. But there is also a good deal more to be said for writing your own material and standing or falling on the merits of your own work. Perhaps it’s basically a question of morals, but sometimes of the law as well.

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