Clarifying the U.S. Approach to Copyright and Plagiarism

Copyright is one of the most important intellectual property rights for any individual in America. The power to grant protection of copyrights “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” is given to Congress in Article 1, Section 8 of the U.S. Constitution. As an author and computer programmer, I find that many of my colleagues misunderstand these rights and the protections that they afford. For this reason, I think it is important to clear up some misunderstandings in the recent IP Watchdog article, “A Question of Morals: The U.S. Approach to Plagiarism, ‘Moral Rights’, and Copyright Infringement” by Dave Davis.

Defining the Problem

It is true that there is a difference between copyright infringement and plagiarism when it comes to written works. Plagiarism is a nebulous kind of stealing of another’s literary work whereas copyright infringement has a strict legal definition. The author of a work has certain exclusive legal rights to:

• Reproduce the work in copies or phonorecords
• Prepare derivative works based upon the work
• Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending
• Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work
• Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
• Perform the work publicly by means of a digital audio transmission if the work is a sound recording

Copyrights can be licensed or transferred to others by the author. Copyright infringement is when any of these rights are taken by someone without getting the permission of the copyright holder. With regard to literary works like novels, copyright infringement is when someone reproduces the work or creates derivative works without permission.

Plagiarism is generally broader than copyright infringement and has no strict legal definition. Copyrights protect the expression of ideas but not the ideas themselves, whereas plagiarism can encompass the theft of ideas. If you write a great new script for a superhero movie about a man who can climb walls and shoot sticky webs from his wrists, you may be accused of the ethical misconduct called plagiarism, but not necessarily the legal misconduct called copyright infringement, for which you can be taken to court. However, if you copy exact dialog out of the Spider-Man screenplay, then you have probably crossed the line into copyright infringement.

However, copyright infringement can occur even if exact lines are not literally copied. Copying and modifying lines can be infringement because, as stated above, derivative works are protected by copyright. Also, nonliteral infringement can occur when the organization of scenes or chapters are identical even if the words are not identical. One of the more famous, recent cases in this area is Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). Fredrik Colter wrote a sequel to the famous book Catcher in the Rye by J.D. Salinger. Called 60 Years Later: Coming Through the Rye, this new book took no actual sentences from the original and yet Salinger and his estate brought a copyright infringement suit against Colter by charging that the new book was not authorized by Salinger yet it contained “extensive similarities, ” as noted by the court:

In bringing this suit, Salinger underscores the extensive similarities between 60 Years Later and Catcher. First, Mr. C is Holden Caulfield. Mr. C narrates like Holden, references events that happened to Holden, and shares many of Holden’s notable eccentricities… Also, Mr. C’s adventures parallel those of Holden. Both characters leave an institution, wander around New York City for several days, reconnect with old friends, find happiness with Phoebe, and ultimately return to a different institution. Finally, within these broader structural similarities, the novels contain similar scenes, such as a climactic carousel scene.

Nora Roberts’ Case Could Have Been Brought in a U.S. Court

This leads me to question why Davis claimed in his article that author Nora Roberts’s copyright infringement case against “could not have been brought under U.S. copyright law.” This is false. First, anyone can bring a case of copyright infringement against anyone else. Copyright cases are rarely thrown out except on legal technicalities; for example, if the copyright was not registered with the U.S. Copyright Office before the litigation was filed. Davis also incorrectly states that other countries abide by the Berne Copyright Convention but that the United States does not. This is also not correct. In fact, the United States signed onto the Berne Convention in 1988. As an expert witness on over 110 copyright cases, including international ones, I can tell you from personal experience that the basic rights of copyright and conditions of copyright infringement are nearly identical worldwide, at least in the United States and the British Commonwealth Countries where I have testified.

What Davis may be considering, though he does not state this explicitly, is that for there to be a determination of copyright infringement, the copying must be “substantial.” This term is a gray area and is left to be determined by a “reasonable” judge or jury. For example, if the sentences that were copied were all descriptions of the sky in a romance novel, it could be argued that the sky’s appearance would not change the substance of the scene. However, if the sentences that were copied were descriptions of the interaction between two lovers in a romance novel, it can easily be argued that even one copied sentence was critical to the scene and thus “substantial.” Which party won this argument would depend on the totality of the sentences that were copied and, of course, the skill of the lawyers and the persuasiveness of the expert witness. But to say that it could not be brought to court is not correct.

Another factor that Davis may be considering, though he does not reference this either, is that of fair use, which is when a copyrighted work can be legally copied for specific purposes, without needing the permission of the copyright holder. According to the U.S. Copyright Office:

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts… are more likely to find that nonprofit educational and noncommercial uses are fair… Additionally, “transformative” uses are more likely to be considered fair, [which] are those that add something new, with a further purpose or different character…
2. Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item) …
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
4. Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work…

In conclusion, if you are an author, protect your creative works and consider taking anyone to court who copies even a small portion of it. If you plan on copying someone else’s work, believing that plagiarism is not actionable in court, you may find yourself on the losing end of a copyright infringement case.

Editor’s Note: IPWatchdog reached out to the author of the article at issue for a response to the questions posed herein but did not receive one in time for publication.

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