In the arts, is there a sort of plagiarism that is not technically copyright infringement but is still wrong?

My using this image is copyright infringement, but is it plagiarism?
My using this image is copyright infringement, but is it plagiarism?

In our workshop, we've been reading through The Best American Stories 2013, and a spirited discussion begun over Lorrie Moore's story "Referential," which (among other things) is a commentary on Nabokov's "Signs and Symbols." I thought that the story was brilliant, but a good portion of the class thought it was just plagiarism, since Moore uses many of the beats, symbols, and devices from Nabokov's story (albeit while changing the story from a piece of weird fiction into one of psychological realism*).

Anyway, this argument led us into a broader discussion about plagiarism. I would say that 'plagiarism' is unethical or immoral borrowing of intellectual content while 'copyright infringement' is when you borrow intellectual content in a way that is punishable by law.

The major difference between copyright infringement and plagiarism is that plagiarism asserts that I created this work, whereas copyright infringement is mostly about whether you're using it in an approved way or not. So, for instance, fanfiction is copyright infringement, but it's not plagiarism (since the writer isn't say that they created Harry Potter). My class believed that the Lorrie Moore story was plagiarism because most readers wouldn't be aware that it was referencing the Nabokov story.

In many fields, plagiarism and copyright infringement are very different things. For instance, if I get someone else to write my term paper, then that's plagiarism, even if it's not copyright infringement. However, my belief is that, in terms of the way we actually react re: fiction stuff, we rarely get riled up about plagiarism that is not also copyright infringement. If you use copyrighted words, characters, and settings, then you're a plagiarist. But if you use non-copyrightable things, then you're not, even if you're not really doing much to alter the work. For instance, I would say that Michael Chabon is not a plagiarist for writing The Final Solution, which is basically a piece of Sherlock Holmes fanfiction, because what he did was not illegal. However, if he had used the name 'Sherlock Holmes' in the book, then he would have been a plagiarist, since Holmes is still (or was still) under copyright in the U.S.

To me, this seems clear from the various literary scandals. For instance, there was a huge outcry over Quentin Markson, who stole passages from various novels in order to create a spy novel with a fairly original plot. But there was no outcry over, say, Terry Brooks, who basically lifted the entire Lord Of The Rings (merely changing the names) in order to create his Shannara series. One of these things seems morally wrong to us (presumably because it's morally wrong to break the law), while the other does not.

My professor posed the question though: what if he took the concept and plot and characters and setting--all the non-copyrightable elements--from my last submission and wrote a story using them and sold it to Harper's or something. Would that be plagiarism?

Honestly, if the standard we used was 'Does this harm the original content creator?' then there would be very few cases of plagiarism, because where can it be alleged that plagiarism actually hurt the original creator? Did Quentin Markson's theft actually hurt John Le Carré? Does Lorrie Moore's theft hurt Nabokov? Did Brooks' theft hurt Tolkien?

No. In many cases, it's the opposite. The original creator benefitted from the increased publicity that arose from the theft. One example of that is this case where Glee ripped off Jonathon Coulton. This is literally the thing that JoCo is, at this moment, the most famous for. And his song sold lots of copies as a result.

That, I think, comes closest to being something I'd call plagiarism, because that causes harm to me: if he did that, I'd find it much harder to sell that story. However, I believe that is also something that is very close to being illegal. At least, I remember there is a famous case where Art Buchwald alleged that his unproduced screenplay had been ripped off by the Eddie Murphy movie Coming To America. So perhaps even there my 'plagiarism = copyright infringement' assertion might still hold true.




*Which is, in my opinion, an interesting and worthwhile change. Nabokov's story is a pretty decent one, but it obviously doesn't take it's own premise very seriously, and it was worthwhile to see a story that really IS about what it would be like to have a son with this kind of madness.

2 thoughts on “In the arts, is there a sort of plagiarism that is not technically copyright infringement but is still wrong?

  1. John Nelson Leith

    Wouldn’t there be a third distinction in parody/commentary? For example, a key question in the Moore and Markson cases would be whether the author would own up to the reference. If they wouldn’t, it’s LeBeouf-ian plagiarism. If they would, it’s a comment on the original. We normally think of this sort of conscious, honest reference in terms of parody, a joke at the original’s expense (still fair), but I think other attitudes toward the original are equally legitimate if the author’s intent is to grow the art in a new direction rather than simply repeating it. This would be the distinction between Martin’s parodic “Dead Mean Don’t Wear Plaid” and Markson’s more serious found-fiction approach.

    I would grant that, given the way copyright is written and pursued by its owners, commentary usage of existing art would have significant overlap with copyright violation. For example, the seemingly never-ending variations of the Batman character, which are often wildly different from each other, would be copyright violations if not sanctioned by the copyright owners, but it would be hard to argue that each were not to some extent a commentary on the previous incarnations. Had Brooks received sanction from the Tolkien estate, would the novelties of Shannara be meaningfully different (in artistic terms) from Jackson’s inventions, like Tauriel? I don’t believe so.

    Not sure where I’m going with this other than to say this is an intriguing topic that has not been fully explored. Even now, fan fiction is receiving greater sanction than before as copyright owners are striking novel deals with self-published authors; what was illegal until very recently is being swept into the legit market.

    1. R. H. Kanakia

      That’s a good point. Aside from parody, I am not sure where a person would stand on a serious commentary. It would probably be copyright infringement. I wouldn’t consider it to be plagiarism, but some people undoubtedly would. I think that the academic standards for plagiarism have, in general, seeped into fiction writing and made people much less tolerant of what, a century ago, no one would’ve batted an eye at.

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