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It’s not just what we say, but also what we mean

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I know; I know. You’re as burned out as I am on all the community drama of late. And here I promised a post on the marketplace of ideas, when instead I’m writing one on plagiarism. But because we are a community based so strongly in words and in the interpretation of texts, it’s important to share a common meaning when we use terms that indicate a violation of some part of the community’s rights or ethics. And reading through some of the comments on the Shey Stahl situation reminded me how complex the concept of plagiarism can be, especially in a community that places such a high value on intellectual property rights.

Many of you probably know about how Stahl’s recently released book, For the Summer, shares some almost word-for-word similarities with the immensely popular 2011 Twilight fan fiction Dusty, written by TeamBella23 and YellowGlue. As of last night, Stahl’s book was available on both Amazon and Barnes and Noble, but it is no longer for sale on either site (I have not checked B&N, but all of Stahl’s books, some of which have been traditionally published, are now unavailable from Amazon). Currently, Stahl’s Twitter feed is locked, her website is down for “maintenance” (although accessible through a cache pull), her Facebook page seems to have been pulled (although, again, available through a cache pull), after many responded to her statement on the goodreads review that started the discussion:

I’ve been made aware of the accusations on GR stating I’ve taken another authors words from them and I stand by my stories always being 100% mine. Please know the facts before you accuse someone of something so wrongful.

The “facts” are provided in a goodreads review of Stahl’s book (well, currently, at least; I’d take screenshots if I were you), where Ari Bookzilla places seven passages from both books side by side (she stopped reading at the 20% mark, so all of these are early in the Stahl book), that share more than a few words. Andrew Shaffer also posted a comparative screenshot on Twitter, as well as a comparison between For the Summer’s blurb and that of another book, showing substantial overlap. One of her editors even came forward and said she expressed concern to Stahl about similarities between her writing and that of other fan fiction authors. Even the current editor is distancing herself from the author at this point.

And then there’s the usual back and forth between the author’s fans and those who believe she plagiarized Dusty, with all of the attendant vague legal threats and accusations of bullying.

I am not going to spend a lot of time tracking through the immense number of comments and back and forth on this issue, because I’m more interested in clarifying the distinctions between plagiarism and copyright infringement, which always seem to get elided and bungled in these situations. However, both the overlaps between the two and the points of differentiation are critical, in part because the recourse and the remedies are not always the same.

Plagiarism is the act of passing off of another’s work as your own. Any type of work, published or unpublished, public domain or privately held, can be plagiarized. The words do not have to be exactly the same, but there must be a persistent and obvious repetition between the two works, such that the plagiarized work is substantially the same in expression, rhythm, and syntax, as the original.

Plagiarism is not a criminal act. Instead, plagiarism is generally considered to be an ethical violation, although it may give rise to civil litigation and/or civil penalties. In an academic environment, for students, it can be grounds for expulsion, and it almost universally is considered a violation of a campus policy, and, if the school has one, an honor code. For authors working with a professional publisher, there is usually a contract term requiring that a book be the author’s original work, so plagiarism can result in breach of contract and cancellation of the publishing contract and return of advance monies (among other things, like the publisher pulling an author’s plagiarized books, a la Signet and Cassie Edwards, wherein Signet gave Edwards back her rights). Or remember when a book that “borrowed” substantially from Jane Eyre was eventually pulled by Dreamspinner Press when the texts were placed side by side?

Also note: plagiarism does not need to be malicious or even intentional. Of course, the more similarities one discovers between texts, the harder it is to believe that the plagiarism was not intentional, but intent is not necessary to prove plagiarism.

Plagiarism is not the same thing as what we call “inter-textuality,” where one book is specifically invoking, involving, and even riffing on another (like Jasper FForde’s Eyre Affair, for example). And even if someone writes a book that features the same character types or even the same basic plotline, that is not necessarily enough to support an accusation of plagiarism. Originality is said to reside in the expression of a work, not necessarily in its basic plot and character components, which, as many have pointed out, are finite in variety and combination.

Still, not all uses of another person’s work — even when acknowledged as such — are lawful.

Copyright Infringement is the unlawful use of intellectual property that belongs to someone else. If, for example, you use song lyrics in a story without getting permission from the songwriter and/or the music publisher, you are infringing on copyrighted work. If you use a photo that is licensed to another person without their permission or without paying a licensing fee, that is infringement. Check out Roni Loren’s experience if you do not believe this. And the common act of scraping online content can absolutely constitute copyright infringement, as Sunita pointed out in a previous blog post. Where plagiarism is the passing off of another’s work as one’s own, copyright infringement is the unauthorized use of someone else’s work, even when credit for authorship is present.

Copyright infringement can, however, involve plagiarism. If, for example, someone copies material from a copyrighted work and passes it off as her own, that is both infringement and plagiarism. The Janet Dailey/Nora Roberts case is a good example of that intermingling. And unlike plagiarism on its own, infringement does directly provide for legal remedies.

But here’s where things get slightly complicated and often misunderstood:

Every work expressed in a tangible medium (including on a computer screen) is technically copyrighted. Even the poem you scribbled on a cocktail napkin and shoved in your pocket. This is common law copyright, and it carries with it the right to have someone cease from using your work (through a cease and desist letter, a legal injunction, or the filing of a DMCA notice). It can also entitle the author of the original work to any direct profits received because of the original work (note: this can be extremely difficult to calculate and not necessarily worth the cost of pursuing the claim).

However, if the author of the original work files copyright registration within three months of publication, that author now has the right to file suit against the infringer and possibly receive what are called “treble damages” (triple damages) under federal statute (copyright is a matter of federal law, and enforcement of registered copyright is therefore handled by federal courts). Registration filed within five years of publication is considered “prima facie” evidence of the validity of the registration (literally, “on the face of it”). There are many complex facets to the notice issue, which are articulated in Title 17 of the US Code, Chapter 4. And as those who have pursued claims will tell you, it can be costly, frustrating, and even inspire backlash, like Nora Roberts experienced from Janet Dailey’s fans (not to mention the fact that Kensington eventually picked Dailey up and continued to publisher her books). An author with a proven track record of sales can find her way back to publication and even success, which can make it seem like there are few consequences to plagiarizing infringement.

Like plagiarism, infringement does not have to arise from any particular intent (or even knowledge of infringement), but intent can, in limited circumstances, make a difference in determining the penalties for infringement, especially if one is found to be an “innocent infringer.” And for those occasions when we all utilize copyrighted works, it is crucial to remember that “fair use” is merely a defense to infringement. In other words, it is a lawful exception to the penalties for infringement, it is not an absence of infringement.

Why does any of this matter? In Stahl’s case, some of her defenders are insisting that because the work that overlaps so substantially with hers is fan fiction, the authors of Dusty (and, I’m assuming, the other works that are now being implicated) should be the focus of any wrongdoing.

So let’s take that argument at face value; let’s say that Dusty is a work that infringes on the copyright of Twilight. Because plagiarism and infringement are not the same thing, it is absolutely possible to plagiarize a work that itself infringes on another’s copyright. Now, I am aware of no claims of infringement against Dusty, but even if there were, Stahl would not be absolved of plagiarism charges on that basis. Plain and simple, plagiarism is the act of  copying another’s work and passing if off as one’s own.

There have been numerous cases of plagiarism that have resulted in seemingly no penalty for the plagiarizing author. St. Martin’s Press denied plagiarism accusations against Lenore Hart’s The Raven’s Bride in 2011, despite passages similar to those from a 1956 book called The Very Young Mrs. Poe. Ian McEwan was accused of plagiarizing passages from Lucilla Andrews’s 1977 memoir.  McEwan even acknowledged his use of Andrews’s memoir, but denied the plagiarism charge.

But in a bookish environment where more authors than ever are self-publishing and where fan fiction is moving into the mainstream for even traditional publishing, these thorny issues are likely to become more common, not less. And as a community, we need to be clear both about the terms we are using to describe these happenings, and the effect of those terms on the authors in question and the community as a whole.

One big issue I think we need to deal with is the way plagiarism, especially, because of its status as an ethical transgression, makes it very difficult for people to separate the act from the actor. Perceptions of plagiarism as a character or moral flaw are common, and despite those authors who do find their way back, in some cases there can be a very high bar to forgiveness. Remember Kay Manning, the treasurer of the Kiss of Death RWA chapter? Hers was one of the few unqualified apologies I’ve ever seen from someone who plagiarized, and still there were many who felt she deserved more punishment. Sometimes, those authors who simply refuse to admit wrongdoing can come out looking better than those who do, which is really pretty sad when you think about it.

In some ways, it may be impossible not to personalize an action like plagiarism, and to perceive the plagiarist as ethically or morally corrupt. And, in this current online environment, there may be backlash against those who make an accusation of plagiarism, a defense of the accused author by trying to discredit and morally impugn the accusers. One of the real problems with this is that it tends to distract us from the toll this takes on the community itself, a toll that goes way beyond the actual plagiarism to a place where things become so personal and hyperbolized that a deep sense of animosity and distrust takes hold between authors and readers, such that readers who publicly uncover plagiarism become designated as “bullies” and authors and or readers who defend the accused author are seen as fanatical or crazy or ethically bankrupt. We are already seeing the effects of this loss of perspective, as the recent changes at goodreads and the Lauren Howard debacle indicate. The incredibly disappointing handling of the Howard story by both Salon and Jane Friedman’s Writing on the Ether  reveals the strain on journalistic standards when it comes to the allure of drama over the plodding pace of circumspect research. And it’s always easier to see the balance between timely action and over-reaction in retrospect.

Respect for intellectual property is critical in sustaining the integrity of a bookish community, but so is tending the community and the way the community manages ethical and legal lapses. Trespasses need to be acknowledged and remedied, but is there a way to do this without making the drama disproportionately magnify and even eclipse  the very real problems that plagiarism and infringement can cause in a community that is both united and potentially divided by its shared engagement with stories.

 

 

 

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isn't sure if she's an average Romance reader, or even an average reader, but a reader she is, enjoying everything from literary fiction to philosophy to history to poetry. Historical Romance was her first love within the genre, but she's fickle and easily seduced by the promise of a good read. She approaches every book with the same hope: that she will be filled from the inside out with something awesome that she didnʼt know, didnʼt think about, or didnʼt feel until that moment. And she's always looking for the next mind-blowing read, so feel free to share any suggestions!

40 Comments

  1. Patricia Eimer
    Sep 24, 2013 @ 07:36:47

    Brilliant blog and probably one of the clearest explanations I’ve seen of copyright and intellectual property law when it comes to books. Much better than the undergrad professor that taught my business law class.

  2. Jane Davitt
    Sep 24, 2013 @ 08:01:38

    Well expressed and clear. As someone who writes both fanfic and original works, I’m infuriated by the current trend of treating the vast archive of fic out there as a shortcut to royalties. It’s like they’re spotting a child playing with a coin and taking it from her because hey, she doesn’t know she can spend it and she wasn’t using it, so why not?

    Because it isn’t yours, that’s why not.

    Fanfic is written for love and shared for free with like minded fans. To steal it with the idea of making a profit off it, and then to deride or threaten the fic author who protests the plagiarism…gah. It’s cynical, lazy, exploitative, and tacky.

    I’m baffled by the people leaping to defend Stahl on GR and lalalaing when they’re shown proof of matching text. Their anger seems to be directed at the wrong people.

  3. Shiloh Walker
    Sep 24, 2013 @ 08:28:19

    Well said.

    Fanfiction is still a recognized form of expression in this country. No, the authors of Dusty shouldn’t be the focus of any wrong doing. I can’t comprehend people are even saying that…except I can. Anything to avoid blaming the person who really screwed up. Stahl.

    The bottom line, for me, if you screw up, own it. Apologize, period. Have the balls to do that simple, but very hard thing.

    That’s why I’m more likely to give Manning another chance if she ever tries to write again. The rest of these people out there? No.

    A real apology, to me, means you’ve acknowledged what you’ve done, and once you’ve acknowledged what you’ve done, I think you’re far less likely to do it again. If for no other reason than because to truly own up and apologize is HARD. It’s humiliating and it takes more strength than some people can comprehend.

  4. starrywonder
    Sep 24, 2013 @ 08:46:20

    I honestly don’t see why authors don’t get plagiarism is wrong. It is you stealing another person’s work and claiming it as yours. In school we are taught plagiarizing is wrong and that you must source to everything that you quote in your book reports or thesis.

    Honestly I don’t get how any authors or fanboys/girls out there can say that someone stealing from another person is fine since this person also kinda sorta we think plagiarized someone else’s work. Even if that’s true, you are still in the wrong. Seriously this boggles my mind.

    I really wish that Amazon would include for all works whether it is SPA/indie/trad published a quality check to ensure that the passages have not been plagiarized. I do think that the self published world is getting more scrutiny but it really is because many of these authors have no idea that taking from a lot of other source and putting your name on a book is wrong. To them, if they tweak a few words or change character’s name it’s okay.

  5. spanglemaker
    Sep 24, 2013 @ 08:47:54

    @Jane Davitt: You expressed what I was thinking exactly, Jane. As one of the fanfic authors Shey Stahl plagiarized ( here’s the summation: http://www.goodreads.com/review/show/726258802 )
    I’m infuriated that she took something I wrote for fun and willingly shared for free with my friends and community and appropriated it (badly, I might add) as her own.

    Reading the comments of her fans defending her and even attacking the accusers is equally infuriating. It seems that many have no clear grasp of what plagiarism is. This blog post should be required reading.

  6. AngstyG
    Sep 24, 2013 @ 08:53:51

    Flawless commentary on the matter, Robin. It’s scary to me as a fanfiction author, but disheartening as someone who works with a lot of indie authors. It gives the self-pub community a bad name, for one, but for every author like Stahl who climbs the backs of fanfiction works to make it to a popular literary agent (Trident) and publisher (S&S), there’s a fanfiction author out there trying to hack it in the world of self-publishing with new, original work, who will never get noticed. Because they can’t churn out books as quickly; they’re not copy/pasting, they’re doing actual hard work. What an unbelievably crappy thing to see. Not only is former-fanfic-author not gaining any momentum in the world of traditional publishing, but someone like Stahl steals her fanfiction and uses it to attain the very goal former-fanfiction-author is seeking to accomplish! That’s a true story, by the way. At least one of the authors being stolen from is experiencing this exact situation. There’s a love story in here about Insult meeting Injury, but I’m too disgusted to write it.

    On top of that, as someone who continually speaks out against lazy and community-exploitative P2P practices (the act of taking your own fanfiction, changing the names, and publishing it), this new trend is doubly horrifying. As your blog states, if the owner of the fanfiction formally copyrights the work (essentially P2P’ing), they’re entitled to more damages. At this point, it’s almost painful to argue the ethical merits of not publishing our own fanfiction. If someone’s going to be profiting from it, it should be the person who wrote it, right? And we should, at the very least, have the maximum level of legal recourse against these plagiarists.

    I still don’t think P2P is right and will continue to be vocal against micro-publishers who seek to exploit fanfiction communities, but people like Stahl are slathering an already slippery slope with an awful lot of lubricant.

  7. Jane Davitt
    Sep 24, 2013 @ 09:00:22

    @AngstyG:

    I too am strongly against pulling fic to publish it. It goes against one of the basic rules of fic; you don’t profit from it. I have some fics that could be tweaked and published I guess but I never have and I never will. Ethics aside, I read a how-to guide once and the work involved was staggering; quicker to start with a fresh piece of paper and craft something new.

    And far more satisfying.

  8. Jane Davitt
    Sep 24, 2013 @ 09:02:23

    @spanglemaker:

    I am so sorry you’ve gone through this. I follow the stop-plagiarism comm on LJ and it’s disheartening to see what a common practice it is within fandom, let alone from outside it. I hope that you get some form of redress and apology.

  9. AngstyG
    Sep 24, 2013 @ 09:05:19

    @Jane Davitt:

    Oh ho, the P2P that commonly goes on in TwiFic is a lot less elegant. Includes a basic scan for grammatical errors and typos, and a Search/Replace All of the names and places. Of course a TRUE filing of serials (from something that’s not so AU, it’s already a generic romance novel) entails a lot more work. And you’re completely right. It’s very rarely worth the effort. Even when they’re successful (Mortal Instruments), we can still see the seams.

  10. library addict
    Sep 24, 2013 @ 09:08:42

    I know some readers stop buying authors who have plagiarized but until publishers stop publishing them there really doesn’t seem to be consequences in the long run. And now that authors can simply self-publish I don’t see it stopping any time soon.

    Those who keep up with the online reading community are aware of how often plagiarism occurs, but I doubt most readers are.

  11. Jane Davitt
    Sep 24, 2013 @ 09:18:38

    @AngstyG:

    Heh, I’ll take your word for it. Twilight was never my fandom. Never read the books or watched the movies. Fic and original stories have different tropes, different expectations — fanfic is far less restricted in what you can do and the types of stories you can write. So you can kind of tell when a fic is ruthlessly pruned to fit a book-sized box.

    I miss the days when I’d tell people I wrote fanfic and they’d stare blankly and say ‘Funfic? Oh, fanfic! What’s that?’

    It’s like that scene in Mary Norton’s The Borrowers where the floorboards come up and Arriety, Pod, and Homily’s home is exposed to the light and then destroyed.

  12. AngstyG
    Sep 24, 2013 @ 09:44:35

  13. Jami Davenport
    Sep 24, 2013 @ 10:58:48

    Robin,

    Thanks so much for best explanation of how a copyright works that I’ve ever read. I’ve often wondered about copyright and whether or not I should be getting a copyright for my soon-to-be self-pubbed books (my current publisher does that for me). I’ve heard answers all over the board, but you explained it extremely well. I’m keeping this to refer to later. Thanks again.

  14. Shiloh Walker
    Sep 24, 2013 @ 11:13:46

    @AngstyG:

    While I definitely see the issues in the piece you linked to, I do want to point out that titles can’t really be stolen the way people think. Certain ones can probably be trademarked-like Star Wars, Star Trek, etc. But titles get used, reused over and over. JR Ward’s Dark Lover-there have been other Dark Lovers, even before hers. One was in the 70s. Other people used Twilight before Meyer did. Now nobody has ever used Harry Potter and the Sorcerer’s Stone… had the title included a particular character, unique to that world? that would make a big difference, I’d think.

    But the title itself can’t really be ‘stolen’ the way some people think.

    To be clear, I’m not defending Stahl in any way shape or form. Titles just…well. They get recycled. Stealing another person’s ideas/their words? That’s a different matter entirely.

  15. AlexaB
    Sep 24, 2013 @ 11:14:29

    Thanks, Robin, for this article. I agree it should be required reading every time this situation comes up (which unfortunately seems to be at least once a month, if not once a week). I get frustrated with with those who confuse tropes with plagiarism, and plagiarism with copyright. And now I have something to point to that says it far more eloquently and succinctly than I ever could! Thanks again.

  16. AngstyG
    Sep 24, 2013 @ 11:32:52

    @Shiloh Walker:

    Yes, I know. We all know this. While a title can’t technically or legally be ‘stolen’, when an author who was active in the same fandom at the time of the fanfiction’s massive popularity both borrows the format of the fanfiction, passages, and title, all at once, it’s pretty clear what’s going on. No, that obviously does not lend any credibility to these accusations from a strictly legal standpoint. But I am not a lawyer, and my opinions aren’t limited to the confines of copyright law, so I feel okay saying she borrowed the title of this fanfiction, as once I’ve put all the facts together, that is what I personally see. I’m not saying anyone needs to add this to their ‘suit’ or whatnot. It’s just pretty obvious.

  17. Allie K. Adams
    Sep 24, 2013 @ 11:33:00

    Thank you for this blog post. It explains the differences between plagiarism and copyright infringement very well. I’m saving this one so I can reference it again!

    As a prolific author (w/a Eve Adams as well), this is something I worry about every day. If someone picks up one of my titles, decides she likes it so much that she’s going to steal it (or parts of it) and pass it as her own, the thought of the battle I’d have ahead me is daunting. But it’s sites like this, and people like YOU Robin, that give me the confidence in knowing I’d have all the right players in my court.

    Again, thank you for this post.

  18. Mary Elizabeth
    Sep 24, 2013 @ 11:49:53

    Shey and I exchanged a couple of messages before she blocked me from all of her accounts. She actually had enough nerve to tell me she never read Dusty and was sorry I felt like she stole my words. At this point, I don’t want an apology from her. She wouldn’t be apologizing to admit guilt, but to save face. I don’t know if she’s a bad person, but she is unethical and a pathological liar. I hope she finds some peace within herself, and I hope she has enough common sense never to do this again.

  19. Carolyne
    Sep 24, 2013 @ 11:57:50

    Hearing about yet another case of plagiarism leaves me incoherently rage-y, so much thanks to this post for laying it all out and helping me recover my ability to use language.

    I personally have no problem with P2P (with a great deal of filing the serial numbers off) if it’s done well and brings a story to a wider audience. Some fanfic is so elaborately crafted, why not give it independent life and possibly growth beyond the initial story/novella/novel into its own full-fledged universe? But there should be a minimum threshold of re-crafting, no less an amount of effort than (here comes the classic example! duck!) Shakespeare and his contemporaries did with the Roman plays, and the Romans did with the Greeks before that. More of an effort, in fact. My opinion on P2P may be tinged by the fact that I started reading fanfic back in ye olde print-only days, and the circulation for some fandoms was pretty small, and an author in a non-Trek/non-X-Files/non-Star Wars niche might not have access to more than, say, a few dozen readers for a novel that went far beyond the source material (AU, post-series, etc. etc.).

    When I say re-crafting, I’m thinking on the level of the Temeraire books (Naomi Novik). With or without changing one of the characters’ species…

    Plagiarism, though, =/= P2P. But as long as authors (we know who) are making buckets of greenbacks for themselves and their publishers and agents, people will keep trying to do it. It’s part of the bad side of human nature going back long before computers+internets made it so easy. I think we have it better these days, when it’s so much easier to use community networks and technology to uncover the leeches. And, I’m starting to consider the idea that in fandoms with a large community of readers, maybe P2P isn’t at all a needful or a desirable thing. Still cogitating that one.

  20. dick
    Sep 24, 2013 @ 12:46:56

    Plagiarism though is a relatively new concept amongst literary folk. Authors of the 18th century and earlier often operated on the principle that once something was written it became the intellectual property of all who had a thinking brain. They borrowed, as did many of those who preceded them, with aplomb; in fact, in some ways they considered a wisely applied borrowing as a compliment to the lender and an indication of their own learning, just as today many of us, (me, at least) use the words of authors of bygone days without citation to make a point, assuming that others will recognize the source. Jonathan Swift, for one, wrote poems he called his own, even though they were almost a word by word translation from Latin. Only rarely were accusations of plagiarism made, probably because the idea of earning from writing was in its infancy. Fan fiction seems to operate on the same principles as those earlier writers. Since fan fictioners borrow extensively with some degree of impunity, it strikes me as sort of dog in the mangerish for one fan fiction author to accuse another fan fiction author of plagiarism. Borrowing without citation is plagiarism to some degree no matter how we parse it, isn’t it?

  21. AngstyG
    Sep 24, 2013 @ 12:57:20

    @dick:

    Well, that is an incredibly flimsy defense of plagiarizing fanfiction authors. While we do certainly borrow from other authors:

    1. It is never done without credit to the original author. All readers are aware who owns the worlds, characters and excerpts from canon, if necessary.
    2. We do not profit from it.
    3. Authors oftentimes explicitly support fanfiction.

    There is a huge degree of knowledge and permission going on there which real plagiarism wholly lacks. Not only are they passing off this fanfiction author’s words and ideas as their own, but they’re also making money hand over fist. So to suggest that somehow fanfiction deserves less sympathy or protection simply because one doesn’t care for the medium, then one is either strongly misinformed about what fanfiction is, strongly misinformed about what plagiarism is, or willfully ignoring the knowledge of each.

  22. Jane Davitt
    Sep 24, 2013 @ 13:02:53

    @dick:
    I think you’ll find that fanfic authors know the difference between writing in a previously created book/movie/TVshow universe and taking actual written words someone else penned and claiming them as their own. We have a community that investigates plagiarism on LJ.

    Most fics have a header stating the fandom in which the fic is set and a disclaimer that the characters and settings are not theirs and no infringement is meant. Legally, it’s meaningless, but it shows, I think, that there is no intention to deceive. When I wrote Buffy/Spike fanfic (fanfic being something Joss Whedon fully endorsed, by the way) I never claimed to have invented a female Vampire Slayer and her snarky English vampire lover. What was mine were the plots, the dialogue, the story itself and yes, I would take great exception to someone appropriating those words and passing them off as their own for profit.

    In short, I disagree with you.

  23. Jane Davitt
    Sep 24, 2013 @ 13:03:36

    @dick:
    I think you’ll find that fanfic authors know the difference between writing in a previously created book/movie/TVshow universe and taking actual written words someone else penned and claiming them as their own. We have a community that investigates plagiarism on LJ.

    Most fics have a header stating the fandom in which the fic is set and a disclaimer that the characters and settings are not theirs and no infringement is meant. Legally, it’s meaningless, but it shows, I think, that there is no intention to deceive. When I wrote Buffy/Spike fanfic (fanfic being something Joss Whedon full endorsed, by the way) I never claimed to have invented a female Vampire Slayer and her snarky English vampire lover. What was mine were the plots, the dialogue, the story itself and yes, I would take great exception to someone appropriating those words and passing them off as their own for profit.

    In short, I disagree with you.

  24. Laura Vivanco
    Sep 24, 2013 @ 14:47:19

    @dick:

    Jonathan Swift, for one, wrote poems he called his own, even though they were almost a word by word translation from Latin.

    I didn’t know anything about Swift’s poems but I had a quick look and it seems he translated some Ovid. The originals would have been very well known, so if you’re referring to those, there could have been no intent to pass the translations off as his own entirely original work. As for calling such translations “his own,” it’s very difficult to write a good translation, particularly of poetry, and the choices the translator has to make can be so numerous and significant that multiple translations of the same work can very widely. That being the case, I can understand why a translator might refer to the translations as “their” poem as a shorthand way of saying “my translation of X’s poem.”

    Authors of the 18th century and earlier often operated on the principle that once something was written it became the intellectual property of all who had a thinking brain. They borrowed, as did many of those who preceded them, with aplomb

    There was, though, a concept of copyright. Obviously not all works which are “borrowed” are in copyright, but

    No sooner had William Caxton set up his printshop in London that [sic] an act (I Richard. 3 c. 9) was passed to regulate the British book-trade. This Tudor statute permitted the importation of foreign books because the legislators of the late fifteenth and early sixteenth England believed that such a practice would encourage the growth of learning. Until 1709 copyright was legally available only to printers and publishers, who regarded copyrights as perpetual investments. The 1709 Statute of Queen Anne first made it legal for anyone–even a writer–to own a copyright, but only for fourteen years (or twenty-eight, if the author survived the first fourteen). The Copyright Acts of 1709, 1814, and 1842 increased the duration of protection from fourteen, to twenty-eight, to forty-two years respectively. (Allingham)

    Oh, and re

    Borrowing without citation is plagiarism to some degree no matter how we parse it, isn’t it?

    I think it is a truth universally acknowledged, that a quotation from a work which is extremely well known need not be in want of a citation:

    The one case in which you don’t have to give credit is when you use “common knowledge.” Common knowledge is facts that are widely known and do not need a named source. This consists of standard information, which includes known and stated historical facts; folk literature that doesn’t have an author or can’t be traced to one; and observations that can be acknowledged as common sense observations. If you are not sure if something is common knowledge, it is better to acknowledge the source than find yourself in trouble for not citing it.

    Some examples of “common knowledge” are:

    Bill Clinton was elected president of the United States in 1992.
    The French Revolution began in 1789.
    In 2002, there was about 21,779,893 people living in Texas.
    One of John F. Kennedy’s famous quotes was, “…ask not what your country can do for you — ask what you can do for your country.” (UT Dallas)

    [Sorry, I've edited this quite a bit since I first posted it.]

  25. Carolyne
    Sep 24, 2013 @ 15:27:03

    @Laura Vivanco: True–today we might refer to Fitzgerald’s Iliad or Fred Ahl’s Medea, understanding that a great translator is almost serving as a co-author to bring an ancient work to modern readers, and (presumably, if we’re reading those to begin with) knowing that they originated with Homer and Seneca. But we don’t generally say that for a modern work, e.g. “Oliver Latsche’s Reckless.” Maybe “Latsche’s translation of Reckless.” I don’t know either whether an odd duck like Swift would have just called the Ovid translations his own original ideas or not, but his peers likely would have recognised them right off unless he was going beyond the originals and writing Ovid fanfic. Which I think would be peachy keen.

    Sure, fanfic writers are joining in on an ancient tradition, as old as storytelling itself; but as @Jane Davitt points out, it’s not without citation, literal or implied. Borrowing from, building within, and referencing other works is different than simply repeating the words and phrases of another work with no acknowledgement–without even the implied “we all know where this comes from because we’ve all seen it”–e.g. Ovid’s phrasings to an educated 17th/18th-century reader, the Kirk and Spock characters to the typical 21st-century denizen–and simply saying “I wrote these words myself,” which is the modern compact between author and reader outside of the fanfic arena. 50 Shades may be P2P, but to my understanding, no matter how much it references the original inspiration, the author did actually write it herself. Dusty AFAIK never claims to be anything other than what it is.

    Also to @dick‘s point: If the plagiarist intends something to be reference in ye olde sense, and if everyone did think this is perfectly ethical, then where is the introductory note saying “I took quite a lot of this verbatim from another work by so-and-so”? (For the record, I’m not on board with that, anyway.)

    I think I’ll just wander off now and get myself a tankard of mead.

  26. Laura Vivanco
    Sep 24, 2013 @ 15:46:11

    Oh, and of course in that last comment I was assuming that the first line of Pride and Prejudice is “common knowledge.”

  27. T.M. Franklin
    Sep 24, 2013 @ 15:50:24

    Great post with excellent information. Thanks so much for sharing.

  28. P. Kirby
    Sep 24, 2013 @ 18:28:36

    As the author of a moderately popular fan fic, I find that this kerfuffle stirs up an alien feeling in me–a sense of ownership that I’ve never really felt before. Thing is, I know I’m playing in someone else’s sandbox, but the words, phrasing, voice, etc., are mine. And in some cases, if I do say so myself, some of them words are put together rather nicely. So much so, that I might use a few phrases in my wholly original, unrelated (not P2P) stories. I haven’t yet, but it’s possible I’ll think, “You know what would work here? That little bit of description from the fic.”

    The fan fict began as a writing exercise, a way of starting up a stuck muse and as such, I don’t see any reason why I cannot re-purpose a few of my words, the prettier phrases, for paying projects.

    Because they are my words.

    The idea that someone else might merrily pilfer my words, however, is rather angry making.

  29. JessP
    Sep 24, 2013 @ 21:41:53

    “One big issue I think we need to deal with is the way plagiarism, especially, because of its status as an ethical transgression, makes it very difficult for people to separate the act from the actor. Perceptions of plagiarism as a character or moral flaw are common, and despite those authors who do find their way back, in some cases there can be a very high bar to forgiveness.”

    Thank you for the excellent discussion of plagiarism vs. copyright infringement. Different context, but it reminded me of the rampant plagiarism that ended Joe Biden’s 1988 presidential run. It was perceived as a huge character flaw, and rightfully so. But no one even remembers it now, and if they do they certainly don’t bring it up with any expectation that it will cause the same degree of upset that it did in 1988. (Slate.com had a good article about this in August 2008) We’ve all moved on, of course.

    I wonder if a lot of people have just completely forgotten why this is wrong, or are morally ignorant to start with? One would think that the number of times this has come up in the fiction world in recent years would be rather a cautionary tale on why one shouldn’t do it, but it doesn’t seem to be stopping anyone. The whole point is for people to read your work – if you’ve plagiarized from someone else, chances are good that someone, somewhere, is going to notice. That so many of the plagiarizing authors’ fans defend those actions, and blame the victim, is seriously disturbing.

  30. azteclady
    Sep 24, 2013 @ 22:10:36

    @dick: So you are saying that King James’ claimed he wrote the Bible then just because everyone and their brother refer to a particular translation as his?

    Or what Laura Vivanco said.

  31. Assorted weirdness | Her Hands, My Hands
    Sep 24, 2013 @ 23:04:24

    […] to add: another week, another plagiarist gets caught. Robin/Janet over at Dear Author explains, very clearly, the differences between plagiarism and copyright infringement, as well as pointing out cases where […]

  32. dick
    Sep 25, 2013 @ 09:23:43

    In response to all: I was not defending the author who copied entire paragraphs from someone else. What I’m stating is that the line between fanfic and outright plagiarism is, IMO, a thin one. Are words alone what make a literary product belong to the original author?
    (And yeah, Ms. Vivanco, I’m well aware that something being common knowledge is accepted as an excuse to use others’ words without citation. Still what we are doing when we do that is in fact plagiarizing unless we also cite.)

  33. Jane Davitt
    Sep 25, 2013 @ 11:38:46

    @dick:

    the line between fanfic and outright plagiarism is, IMO, a thin one.

    Then IMO, you’re demonstrating a poor understanding of both.

  34. Aly
    Sep 25, 2013 @ 12:04:09

    If the writer did plagiarize the fanfic, I wonder how she thought she could get away with it. Maybe she thought “Oh no one will know, it’s just one fic among millions!”?

    Let’s see how the author responds now.

    I remember last year that huge scandal regarding The Story Siren. Amazingly enough, that website is still active.

  35. azteclady
    Sep 25, 2013 @ 20:17:07

  36. What It’s Like to Have Your Work Stolen on the Internet | 10ptplan
    Sep 26, 2013 @ 08:09:23

    […] a question: how stupid do you have to be to plagiarize these days? We live in a society where every scrap of content we post online is searchable. If you […]

  37. dick
    Sep 26, 2013 @ 09:13:39

    @JaneDavit: Perhaps. Is not fanfic the use of another’s imaginative creations for one’s own purposes? How does that differ, in essence, from stealing another’s words?

  38. Jane Davitt
    Sep 26, 2013 @ 09:55:31

    @dick:
    You are conflating theft with plagiarism. Let me address both separately.

    You said fanfic was close to plagiarism. There is no ‘close’. It either is or it isn’t. Plagiarism, as defined by Merriam Webster, is:
    ‘the act of using another person’s words or ideas without giving credit to that person : the act of plagiarizing something’.

    Fanfic credits the source. Always. Some fics, episode tags, for instance, where a story continues the events of an episode after the credits roll, might use a few lines of dialogue from the episode as a lead in; always credited, often put in quotation marks to separate them from the text.

    We credit. We write because we’re fans of the original. We never lose sight of the source. We never pretend canon characters are our own. We credit.

    Therefore, we are not plagiarizing.

    Stealing. Stealing what? Revenue? No. Fanfic gets people into shows and books. They start to watch/read, buy tie-in merchandise, go to cons… A spirit of community is fostered that can move mountains. Ask Joss Whedon where the revenue from the movie Serenity came from. Fans. Browncoats who wouldn’t accept the cancellation of Firefly and made enough noise that a freaking movie got made of that cancelled show.

    Can’t stop the signal.

    You’re also forgetting how often the owners of the originals endorse fanfic. Joss certainly does. They recognize it as an expression of interest in their creation, and they open their doors and say, hey, yeah, come in and party.

    Not everyone. Some authors dislike it. Anne Rice, Diana Gabaldon…there are others. I’ve never wanted to write in a fandom where the owner didn’t endorse fic of it. I probably wouldn’t but that’s just me.

    Fanfic takes the source and expands it. It’s about the what ifs and the endless possibilities. It’s rarely a straight retelling of something that happened on the show; where’s the fun in that?

    We steal nothing. We give a lot. Our time. Our energy. Our talent. Every year, in many fandoms, people write fics for charity, fellow fans bidding to have a story written to their specifications, the money going to various good causes.

    I suppose in that sense we do make money from fic…but ask Moonridge Zoo where they’d be without the Sentinel fans. Because one of the actors was interested in the zoo, the fans adopted it as a cause. They’ve raised 250,000 for it so far– and that show hasn’t been on the air for what, fifteen years?

    I’m going to shut up now because I’m getting worked up and cross.

  39. The weekly web ramble (9/27)
    Sep 27, 2013 @ 17:21:01

    […] – Dear Author breaks down the latest plagarism debacle […]

  40. Banned books and more! | How To Write Shop
    Oct 23, 2013 @ 10:13:31

    […] * If you are curious about the latest plagarism brouhaha, this site has some (long but good) explanations. […]

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