Some people eat, sleep and chew gum, I do genealogy and write...

Wednesday, April 9, 2014

Copyright and Plagiarism -- What is the difference and why is there a difference?

I write on the subject of copyright and now, plagiarism from time to time because I hear so much about both that is inaccurate, misleading or just plain false, that I think the genealogical community needs a little push towards reality once and while.

In a recent comment there was a mention of using copyright law to enforce, what the commentator called, plagiarism. From my point of view, that is like using a hammer to open cans. It may get the job done, but it will likely spoil the content. What is disturbing about the point of view expressed by the comment is that there was an assumption that you could "use the law" to enforce your own particular viewpoint.

Copyright is entirely a statutory based cause of action. What this means is that there are laws about what is and what is not a copyright violation and any claims must be made in the proper courts and follow the procedural rules. In the United States, original jurisdiction of copyright cases lies in the Federal District Courts. This means that you cannot file a copyright claim in any of the State courts. In your claim in the District Court, you must set forth a cause of action based on a statutory violation. If you don't understand what this means, it means you almost always will need an attorney well versed in copyright law before you begin a lawsuit. Oh, by the way, if you were to come to me during the time I was practicing law and if I suspected that you were trying to enforce some other claim, I would decline to take your case. Any ethical attorney would also do the same.

Unfortunately, whenever I agreed to listen to a client and found out that they had been to more than one attorney before coming to me, I was very suspicious that they had "adjusted" what they said to me based on objections made by previous attorneys. In other words, they were lying to me to get me to take the case. This almost always turned out to be true.

OK, now a bit about plagiarism. I realize that there are any number of articles online that state unequivocally that "plagiarism is theft." This is statement is wrong from both the definition of plagiarism and any legal definition of theft. What is worse, the statement would lead someone to believe that committing plagiarism could be considered a crime. Plagiarism is not a legal issue at all. Period. The fact that some dictionaries include terms such as "theft" and "infringement" as synonyms for plagiarism is not a legal opinion. Here is one such inaccurate definition from
an act or instance of using or closely imitating the language and thoughts of another author without authorization and there presentation of that author's work as one's own, as by not crediting the original author: It is said that he plagiarized Thoreau's plagiarism of a line written by Montaigne. Synonyms: appropriation,infringement, piracy, counterfeiting; theft, borrowing, cribbing, passing off.
 The real issue here is attribution. In other words, failure to give credit to the original author. To my knowledge, for example, the only mention of plagiarism in the Arizona law is in the Code of Conduct for Education where it is defined as,
"Plagiarism" means intentionally or knowingly representing the words or ideas of another as one's own in any academic exercise.
Now, there can certainly be a cause of action for copyright and what was copied could be considered to be plagiarism, but there is an important legal distinction between violating an ethical code and giving rise to a cause of action in the Federal Courts. The distinction is in the addition of the concept of failing to give attribution for ideas. Ideas cannot be copyrighted. If I copy your words, you may have a claim for violation of an existing copyright (assuming you didn't copy them from someone else) and if I failed to give attribution, you could have your feelings hurt but unless there was a cause of action for copyright violation, there wouldn't be a whole lot you could do about it.

Now, don't get me wrong. I am adamantly opposed to plagiarism. I have no sympathy at all for the person who copies another's work without attribution. But, remember this, even if you give attribution, you can be in violation of a copyright law.

As I have stated in the past, online campaigns against someone you think has violated your copyright or plagiarized your work (both or either) are extremely counter-productive from my point of view. If you have a legal claim, then make it through the proper legal procedures after consulting an attorney. If you are told you have no legal claim, then forget the problem. If you write to someone and threaten legal action, be prepared to follow through. When I was practicing law, I refused to write a letter threatening legal action unless my client was actually in the process of filing a lawsuit.

People who are intellectually dishonest and appropriate others' work seldom survive long in a small community such as the online genealogical community.


  1. Actually, the commission of plagiarism *can* be a matter of *contract* law, if a person has signed a contract claiming that the material they are submitting is original (and it turns out that it isn't).

    1. Well, since I can be overly technical, then the cause of action would lie in contract not tort (personal injury). The issue of remedies and damages would be entirely different and it is highly unlikely that the original author would be the "injured" party.

  2. Copyright is no use in stopping the plagiarising of something out of copyright.

    And I imagine one can breach copyright while not plagiarising - e.g. if breaching the fair usage limit.