Pop quiz!

1. Plagiarism is always copyright infringement. True or false?
2. Copyright infringement is always plagiarism. True or false?

If you answered “false” to both, you’re right. But that doesn’t mean you can skip this post. As writers, we need to know the difference between copyright infringement and plagiarism, to protect ourselves from both and to protect ourselves from committing either.

Plagiarism

If you were educated in the US, “plagiarism” has probably been part of your vocabulary since, oh, about sixth grade, when you wrote your first research paper. Even though plagiarism can appear in any arena, it’s talked about a LOT in academia. Your English teacher and school librarian probably beat it into your young skull that you need to cite your sources for everything. They probably also reminded you that copying other people’s papers was just plain wrong. But do you really understand what plagiarism is?

Here’s what the Law.com Law Dictionary has to say (red added for emphasis):

plagiarism

 

n. taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one’s own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.

 

See also: copyright infringement

Like I said, plagiarism gets a lot of press in academia, but it can appear other places, too. Remember that flap over How Opal Mehta Got Kissed, Got Wild, and Got a Life? (I posted about it one year ago today.) And did you hear about that CEO who snagged pretty much the entire contents of his 2006 book on management from a 1944 book on engineering (and a couple of other places, too). For information about plagiarism in academia, one great resource is Plagiarism.org, and there are tons of others.

So, let’s recap.

Plagiarism is passing someone else’s work off as your own, and it can happen anywhere writing happens. It can be used as the basis for a charge of copyright infringement — but that means that it’s not necessarily copyright infringement. So what, exactly, is copyright infringement?

Copyright Infringement

Copyright infringement can cover any work in fixed format, not just writing, but for the purposes of this discussion, we’re going to focus on the writing application. (For some entertainment, though, check out the music infringement vs. fair use cases at Benedict.com and read about the decision while you rock out to the evidence.)

So, what exactly is copyright infringement? Before we answer that question, we need to talk about exactly what rights are included in “copyright.”

According to Title 17 of the US Code, which you can read in its entirety (though why you would want to, I have no idea) at Cornell Law School’s Legal Information Institute, the owner of a work’s copyright has the exclusive right to the following:

1. Reproducing the work
2. Creating derivative works
3. Distributing the work (for sale or otherwise)
4. Displaying the work
5. Performing the work

That’s all in Section 106 if you want to get the full legalese (though again, why you would want to, I have no idea). But there’s a limitation on the duration of copyright. You’ve heard of the public domain? That’s how stuff ends up in the public domain: The term of the copyright runs out.

Generally speaking, stuff created after January 1, 1978, is protected for a term of the author’s life plus 70 years.

If I died tomorrow, all the stuff on my blog would still be protected by my copyright, meaning that whoever I leave the work to is the only one who can do the five things listed above, until 2077. Then the work enters the public domain. There are nuances to this, so be sure to read all of Section 302 for the dirt. And as to stuff created before 1978, well, I have no clue how to explain that so it will make any sense to anyone, so you’d better read Section 303, too.

Works for hire and government works are a whole other story.

The short version is that WFH is protected for 95 years from first publication or 120 years from creation, whichever is sooner (Section 302(c)), and that works created by the US government are not protected under copyright (Section 105). Works published before 1923 are in the public domain. (There’s a handy chart created by Lolly Gasaway at UNC that breaks this down, but it’s a few years old, so be sure to check the law to make sure there have been no changes.)

Phew, that was confusing.

Okay, so how do you infringe on someone’s copyright?

Basically, you just reproduce, distribute, display, perform, or create a derivative work from something that somebody else created. Here are some examples:

• If someone else snags this article and posts it on their own blog with my byline on it without getting my permission, they’re displaying it, which violates my exclusive right to do so as the copyright holder. (And no, giving me “exposure” does not exempt them from being big, fat lawbreakers.)
• If you read a cool article in the New York Times and paste it into an e-mail and then send it to your best friend, you’re violating the NYT‘s copyright by reproducing and distributing the work without permission.
• If you hate the ending of the last Harry Potter book and decide to write a better one and paste it on a fan fiction website, you’re violating J.K. Rowling’s exclusive right to create derivations from her work.

But, just because you’re infringing on someone’s copyright doesn’t mean you’re plagiarizing.

A Note on Fair Use: What it Is and What it Ain’t

Fair use isn’t a right. You don’t just get to use stuff because you want to. Fair use is a limitation on exclusive rights that basically allows people to talk about others’ works. According to Section 107,

…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism

, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Creating a parody or a transformative work based on something protected by copyright is also theoretically permitted under fair use. The word “theoretically” is really important there, though, because fair use is decided on a case-by-case basis using these four factors:

(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

For examples of fair use cases, check out the music disputes I mentioned earlier.

Plagiarism, Copyright Infringement, and Ethics

If you’re plagiarizing something that’s not in the public domain, a work that is still protected under copyright, you’re most likely committing copyright infringement as well as plagiarizing.

But what if you’re plagiarizing a government work or something published in the 1800s, both of which are in the public domain? Well, you might not be violating the author’s copyright, but you’re definitely breaching some ethical boundaries!

So how can you use public domain works in ethical ways? Anthologies are one good example. So are the cheapie bookstore chain editions of classics like Hard Times and The Scarlet Letter and things like that. There’s no plagiarism involved because the author is still credited with the work, and there’s no infringement because the term of copyright has expired.

What types of actions constitute copyright infringement without also constituting plagiarism? The examples I mentioned above are all good ones. Here are some freelancer-specific examples you might encounter:

• A magazine purchases First North American Serial Rights for your article, and then posts the article on its website, with your byline of course. They purchased print rights only, not electronic rights. The posting of your article online is an infringing use.
• A client stiffs you on your bill for the brochure you just created for him, but uses the brochure anyway. He never purchased the work, so it’s still yours — and he’s infringing on your copyright.
• An anthology editor purchases your story for one-time use, and then later includes it in a second anthology 10 years down the line. Unless she comes back to you to purchase the right to use it again, that’s infringement.

The bottom line: Unless you explicitly sold the specific rights, you keep them. But that doesn’t necessarily mean that people can’t quote your work, criticize it, or discuss it in a classroom with copies in hand.

Now that you know that plagiarism and copyright aren’t interchangeable, that fair use isn’t a right, and that there are ethical and unethical ways to use protected and public domain work, you can make better decisions as a writer and researcher and as a businessperson.

Disclaimer: I’m not a lawyer and this article is not legal advice. For legal advice on copyright issues, consult an intellectual property rights lawyer.

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