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

Tuesday, November 25, 2014

Can I sue for plagiarism?

To rephrase the question posed in the title to this post: can I maintain a separate cause of action in a court of law based on plagiarism as opposed to claims for copyright infringement? The complicating factor in answering this question in the United States, involves the issue of jurisdiction. In the U.S. Federal District Courts have original jurisdiction over copyright claims. This means that you cannot file a copyright action in a local or state court. So how do you separate a claim for plagiarism from a claim for copyright infringement?

This is a recurrent issue in the larger genealogical community. The most common form of complaint comes from a genealogist who "shares" their family tree (i.e. pedigree and/or research) with another person, usually a relative, only to have the relative copy and publish the family tree in its entirety without attribution (i.e. giving credit to the "originator"). Of course this scenario raises multiple issues including a claim of plagiarism.

Despite the common folklore level of belief about both plagiarism and copyright, both claims arise from a concept of ownership of ideas and concepts. The distinction between the two is extremely blurred. To begin to understand the basic distinction, it is necessary to understand the concept of a "cause of action." In the legal world, the phrase "a cause of action" refers to a legal claim that can be the basis for filing a lawsuit in s court. Learning the distinction between what is and what is not a cause of action is at the heart of one of the main skills acquired by attending law school. The complete knowledge of this skill is only learned after considerable active trial experience. Failure to "state a cause of action" when filing a lawsuit can be the basis for nearly automatic dismissal of the lawsuit. One of the most common responses in an answer to a complain filed in the court is that of "failure to state a claim upon which relief may be granted." In some instances, stating such a claim may involve reciting a long list of elements.

For example, a claim for fraud, in many jurisdictions, requires stating anywhere from five to twelve separate elements (or claims) each of which must be proven to maintain the action. Here is one description of the elements of a claim of fraud from the California Civil Jury Instructions Section 1901:
[1. (a) That [name of defendant] and [name of plaintiff] were [insert type of fiduciary relationship, e.g., “business partners”]; and
(b) That [name of defendant] intentionally failed to disclose an important fact to [name of plaintiff];]
[1. That [name of defendant] disclosed some facts to [name of plaintiff] but intentionally failed to disclose [other/another] important fact(s), making the disclosure deceptive;]
[1. That [name of defendant] intentionally failed to disclose an important fact that was known only to [him/her/it] and that [name of plaintiff] could not have discovered;]
[1. That [name of defendant] actively concealed an important fact from [name of plaintiff] or prevented [him/her/it] from discovering that fact;]
2. That [name of plaintiff] did not know of the concealed fact;
3. That [name of defendant] intended to deceive [name of plaintiff] by concealing the fact;
4. That [name of plaintiff] reasonably relied on [name of defendant]’s deception;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s concealment was a substantial factor in causing [name of plaintiff]’s harm.
Working backward, an attorney (or anyone filing a lawsuit alleging fraud) would have to include an allegation of each of these claims in his or her complaint or risk having the complaint dismissed for failure to state a cause of action.

The reason why I mention this particular cause of action is that the concept of perpetrating a fraud lies at the heart of the concept of plagiarism. Basically, plagiarism is when a person appropriates ideas and content created by another person and claims it as his or her own work with disclosing the source of the material appropriated. However, any cause of action alleging fraud for plagiarism would lie with the recipient of the work, not the originator.

Notwithstanding the existence of a potential fraud claim, plainly stated, in the legal world, there is no separate cause of action for plagiarism. Any such claim made in court must be stated in terms of some type of fraud. Further, plagiarism is usually alleged by the recipient of the plagiarized work. For example, the common context is in a school or classroom setting where the student submits a paper with material copied from another as his or her own work. In the academic world, this is very common and dealt with, sometimes, very severely, resulting in the student's failure of the assignment, or in some cases, expulsion from the school, college or university.

In the context of the genealogist whose family tree is appropriated by a relative, this third-party involvement, i.e. the academic institution, is missing. Could the school maintain a cause of action against the student for plagiarism? Realize that in this instance, the creator of the plagiarized work is very, very likely totally ignorant of the unattributed copy. In fact, the copied work could even be freely available and in the public domain. In nearly all instances of plagiarism, ownership of the original, copied material is not the issue. Failure to attribute the origin of the copied material, usually in an academic setting, is the issue. Any legal involvement arising from a claim of plagiarism is commonly raised by the student challenging the actions of the academic institution. Again, the originator (writer, creator etc.) of the plagiarized work is not involved.

Could the genealogist whose work was "plagiarized" maintain a cause of action? I have a difficult time imagining such a situation because, if you examine the cause of action for fraud, you will see that the action is based on a claim by the recipient of the plagiarized (or allegedly fraudulent) work, not the originator. If I looked at a family tree online that had been copied without authorization from its originator, would I have a cause of action for plagiarism? You might like to argue that you did, but no attorney in their right mind would take such a case absent some substantial proof of damage.

Other than hurt feelings and indignation, how is the originator of a family tree, whose work is plagiarized damaged?

Now, this is where copyright comes in. Historically, recognizing that the originators of a work had no cause of action for unauthorized copies made of their work, lawmakers made up such a claim and called it copyright protection and identified the created work as "intellectual property." The statutes conferred a type of ownership on the originators (authors, composers etc.) of a work (books, articles, compositions etc.) and gave the originators a "cause of action." The catch here was that the cause of action was severely limited by the exact words and the interpretation of those words in a court of law.

We have now come full circle. if I want to maintain an action in a court for copyright infringement, I must allege a cause of action based on the copyright statutes of the jurisdiction where I bring the action.  For example, in the United States, I must allege all of the elements of a copyright infringement case as established by the applicable statutes and existing court rulings in the U.S. Federal Court system. In the legal context, if the originator of a work, such as a family tree, thinks that the work has been plagiarized, they are really thinking in terms of ownership of the work and are, almost always, really subject to a copyright infringement claim. Plagiarism does not apply.

Can I maintain a claim for copyright infringement if someone copies my online family tree without attribution? The answer, as far as the current case law is concerned, is maybe. But my opinion is no because there is no U.S. Federal Court case that has recognized an online family tree as a "protected work" under the existing statutes. The copyright issue arises when the work becomes "original" as defined by the statutes. For example, when the originator adds his or her own original work in the form of notes, comments, stories etc. to the family tree. If you would like to pursue this issue and argue with me about the application of the copyright law, I would be glad to respond, Please see Copyright and Genealogy from the Association of Professional Genealogists as a starting point.

The extent to which any work is covered by copyright law is determined by the amount of original content created by the originator of the work. Attorneys sometimes learn by hard experience how to judge whether a claim by a client constitutes a viable cause of action.

If you believe you have a claim for plagiarism and/or infringement of copyright, please seek competent legal advice from an attorney who is practicing law in the area of intellectual property. This is a narrow area of the law (i.e. may be considered to be a specialty) and many attorneys in general practice know little or nothing about intellectual property. Please remember that I am no longer a licensed attorney and I am completely retired from the practice. This post is my own personal opinion and nothing in this post should be construed to constitute legal advice on any particular set of facts or cause of action.

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