Copyright versus Plagiarism

This month I wanted to talk about an issue that often trips writers up: the difference between copyright infringement and plagiarism. In many cases, the same situation could raise both copyright and plagiarism concerns: for example, if someone copies your work and takes credit for it, that person has both infringed your copyright and plagiarized your work. However, it’s useful to understand the difference.

Here’s my usual disclaimer before I dig into the weeds: nothing written here is intended as formal legal advice and folks who need help with particular issues should consult an agent or attorney.

The main difference between copyright and plagiarism is that copyright is about (you guessed it!) COPYING and plagiarism is about ATTRIBUTION (taking credit for someone else’s work). Why is it important to understand the difference? Well, there are several reasons:

  1.  There are no major laws prohibiting plagiarism in the United States. Taking credit for someone else’s work may be bad for your reputation and may breach the norms of an industry, like the publishing industry, or even a university’s or journalist’s code of ethics. However, you can’t sue someone for “plagiarism” of your novel or short story.
  2. Copyright law, on the other hand, isn’t concerned with attribution. If you copy someone’s work without permission you’ve likely infringed their copyright regardless of whether you put their name on it, your own, or someone else’s. To infringe a copyright, you only have to copy.
  3. Copyright focuses on copying the “fixed literal expression” of someone else’s work, while plagiarism is a little more broad. Taking credit for another person’s work without giving them appropriate credit may be plagiarism (under, say, a relevant code of ethics), but there is no copyright infringement unless there is a substantial copying, or reproduction, of a person’s original expression of the idea. It can be difficult to establish a copyright infringement if someone else has written a new story that resembles your story in terms of plot or character, but doesn’t “substantially copy” it. I won’t get into a legal definition of “substantial copy” here because it’s such a messy concept in the law, but you get the basic idea, right? Copying is more concerned with, well, copying than with underlying notions of plot and character.

Of course, even if someone copies your work, there are some legally recognized excuses, like fair use which I’ll talk about in a future column, but you don’t even get into arguments about fair use unless there has been unlawful COPYING in the first place.

If you’re concerned that someone has taken credit for work you’ve done, that’s another story: a story of plagiarism. As you now know, that’s not an infringement of the law generally speaking. However, sometimes if you accuse someone of plagiarism, that’s all it takes to get the publisher to take action to remove the book or story from public distribution. It all depends on the circumstances, but writers and publishers do have concerns about their professional reputations, and, even though plagiarism is not a formal law in the United States, it’s ethically bad practice and you should feel free to object if someone plagiarizes your work.

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