Gacked from Olympia

[heidi]

Judge Posner (who is also a prof at U Chicago's law school) has a new article about plagiairsm and copyright infringement issues which says many of the same things I've been saying over the past two-plus years (including, of course, the obligatory Romeo&Juliet/West Side Story reference).

To quote from the article:

Wholesale copying of copyrighted material is an infringement of a property right, and legal remedies are available to the copyright holder. But the copying of brief passages, even from copyrighted materials, is permissible under the doctrine of "fair use," while wholesale copying from material that is in the public domain - material that never was copyrighted, or on which the copyright has expired - presents no copyright issue at all.

Plagiarism of work in the public domain is more common than otherwise. Consider a few examples: "West Side Story" is a thinly veiled copy (with music added) of "Romeo and Juliet," which in turn plagiarized Arthur Brooke's "The Tragicall Historye of Romeo and Juliet," published in 1562, which in turn copied from several earlier Romeo and Juliets, all of which were copies of Ovid's story of Pyramus and Thisbe.

"Paradise Lost" plagiarizes the book of Genesis in the Old Testament. Classical musicians plagiarize folk melodies (think only of Dvorak, Bartok, and Copland) and often "quote" (as musicians say) from earlier classical works. Edouard Manet's most famous painting, "Dejeuner sur l'herbe," copies earlier paintings by Raphael, Titian, and Courbet, and "My Fair Lady" plagiarized Shaw's play "Pygmalion," while Woody Allen's movie "Play It Again, Sam" "quotes" a famous scene from "Casablanca." Countless movies are based on books, such as "The Thirty-Nine Steps" on John Buchan's novel of that name or "For Whom the Bell Tolls" on Hemingway's novel.

Many of these "plagiarisms" were authorized, and perhaps none was deceptive; they are what Christopher Ricks in his excellent book "Allusions to the Poets" helpfully terms "allusion" rather than "plagiarism." But what they show is that copying with variations is an important form of creativity, and this should make us prudent and measured in our condemnations of plagiarism.

Especially when the term is extended from literal copying to the copying of ideas.

This article really encapsulates my feelings on plagiarism issues - regardless of the amount of sympathy I feel for my friends when their ideas, their characters, their plots are used by other fanfic writers - if it's credited it isn't plagiarism. It might be copyright infringement, if the sections are identical *and* more than brief, or even if the characterisations are taken from one story to the other (although then the fair use argument does get to at least be made, even if it's on the line). It isn't plagiarism.

FA has tried to use consistent definitions, standards and rules on these issues since we started (although we do have a full stop on Anne Rice incorporation, in a CYA manner...) and I think in a way, it's been important for, as Judge Posner says, dissemination of ideas in the fandom.

"It would be better if the term "plagiarism" were confined to literal copying, and moreover literal copying that is not merely unacknowledged but deceptive."

And that's a good rule to apply when you're reading the HP books, unless you want to get hysterical about JKR's use of cockroach clusters, which is directly from a Monty Python sketch, or if you want to rant about the unoriginality of Shakespeare In Love. And so above, as below - the rule makes sense if you apply it to fandom works as well. Literal copying of a character, or a scene, where it's unacknowledged, gets the term. If you acknowledge it, it's not fraud - it may be bad writing, or it may be social-media-personal commentary, or it might be done to make a point about characters or types or styles or genres or all of the above.

Comments

[violetisblue.livejournal.com]

"And that's a good rule to apply when you're reading the HP books, unless you want to get hysterical about JKR's use of cockroach clusters, which is directly from a Monty Python sketch..."

As are "Norwegian Blues," taken straight from the Dead Parrot sketch. People are calling small borrowings/allusions/inside jokes such as that one "plagiaristic"? *shrugs* In that case, we're all in terrible trouble.

[kitsune13.livejournal.com]

Word, word, and word again. I'm incredibly sick of the "We're all plagiarists anyway, so I can steal other fans' work" defense, or just the invocation of "fanfic=plagiarism" argument in general. Fanfiction is not, in and of itself, on shaky artistic-moral ground, any more than Stoppard's Rosencrantz and Guildenstern are Dead is; in each instance, as well as in the cases mentioned in the article, enjoyment of the recursive (or fanfictional) piece is predicated on the reader's knowledge of the original text, and that knowledge is where much of the enjoyment of the fanfiction comes from. It's only plagiarism if, as you noted, there's an attempt to deceive -- to pass off someone else's words as your own. But fanfic writers and Stoppard and Joyce and Angela Carter and everyone else who alludes to other work assume that the readers will realize what doesn't originate with them.

Er, sorry to ramble in your lj -- this has been bugging me for ages. :)

[melissa-tlc.livejournal.com]

That's an interesting snip, Heidi. (And still pregnant? WTF. Pop already. Want me to come there with a pin?)

I agree that fanfic in itself is not plagiarism; though I do think the Tanya Grotter thing is copyright infringement that extends dangerously close to plagiarism. Perhaps it's not cut/pasted, but there's a certain ... wrongness to it. I don't really have the words to describe my stance here, it's not written in code, it's not something where I can point to a textbook and say "A ha! I was right!" My issue with 'plagiarism,' in the extended version the fandom generally applies to it, is one I really can't argue. It's just a base moral thing. Perhaps I have no backup in legal code, perhaps strictly by the letter copying of thoughts and ideas is allowable in the small doses we as fans see them copied - but I still can't stomach it, and that's probably more a personal thing than anything else. Has to do with general journalism theory. I was taught, from day one, credit credit credit credit credit. And when you're done doing that, credit some more. And I can't understand how lifting phrases and ideas not your own without giving credit is allowable in any form.

That said, I don't mean fanfic in general. We know it's a gray area, but the bottom line is that, mostly, fanfic writers don't make money, and usually disclaim their work quite generously. They give credit where the credit is due, and are not expecting any acclaim they get to come from invention of, say, Harry or Ron. They might get acclaim for keeping them in character, or putting them in a surprising, yet believable situation; they might get acclaim for their own personal writing style, and they might get acclaim for some fantastic idea they had that had the jumping point in canon - that's all great, and that's what I think Neil Gaiman means when he calls fanfic 'training wheels.' It's space to work in a subset of imagination - and we know that there is a LOT of work out there that technically qualifies as fanfic. Pretty much everything Gregory McGuire writes; THE HOURS is a fanfic; all those movies you mentioned; etc - there is no such thing as a truly original idea, but there is such thing as an idea too-influenced by another's work to be considered your own. It's just shades and levels of ownership, and will always be gray. The difference is that useful 'public domain', which seems to be the magic dust for fanfic writers, allowing them to market their work. And that's useful, because it allows enough time to pass from the inception of the work so as the 'fanfic' authors are not stealing any acclaim that might not have been theirs. They're basically allowing the pot to cool before setting another pan on the fire. It's just putting a rule on common sense, which is don't steal another person's thunder; create your own from existing elements, but don't steal.

What I ... what really gets my blood going is when, in any medium, an author or any sort of creative being lifts work from someone else and does not credit, and accepts acclaim based on that work. Basically, when the work of one person is attributed to the person who lifted it. That is one of the things Jayson Blair did - just took pieces of another article and pasted them into his own, and got the credit for them, as if he had done the work required to create them. He didn't, and just because the readers of the New York Times are different than the readers of the Atlanta Journal Constitution or Boston Globe does not mean he can have that acclaim. It's not his. Eventually, he was called on it. But it was this lax attitude toward crediting that snowballed into what has become the biggest media scandal in recent times; it's this feeling of entitlement to a work to which he had no reason to be entitled. And it is no different if it happens at the New York Times or in your own personal diary: it's just wrong.

So yeah, maybe the law says it's not. I just can't stomach it.

Wow, I've rambled. Go have that kid.

[malsperanza.livejournal.com]

Eek, is it possible that I am agreeing with something Posner says? Posner??

*runs to mirror to see if she has turned into a werewolf*

Actually, though, isn't he oversimplifying the issue? Plagiarism isn't really parallel to copyright infringement, and can't be adjudicated according to legal standards. It's a matter of scholarly standards, which are more rigorous. E.g., if a historian plagiarizes another historian's work, that dishonest text enters the historical record. Then when the next author quotes from the text, the original thinker, who wasn't properly credited, is erased. Erasure is never a good thing.

And Posner makes no real distinction between the latitude permissible to an author of fiction and, say, a historian or journalist. But the standards aren't and shouldn't be the same, because the artist's responsibility is to make good art, not necessarily to report with precision and honesty. No?

In fiction, all artists steal (or borrow or adapt) from one another; there is no art without some level of theft (whether or not you call it plagiarism). The standard for art is (to borrow the legal term) its transformative element: Manet may borrow from Titian (not to mention Raphael, Raimondi, and an anonymous ancient Roman sculptor), but he transforms what he steals into something new, and the world is the richer, not the poorer, for the theft. I keep hoping that we won't let federal judges become our art critics, and decide what is and is not permissible in this realm. But we seem to be heading that way.

Whew. So I don't have to agree with Posner after all, at least, not entirely. (Though I do like the idea that everyone should stop trying to control their creative work so much, and quot worrying about whether they are being thieved.) Thanks for posting the article.

[mmichelle.livejournal.com]

Good post, Heidi! I've always thought the issue of plagarism was sort of sticky, especially in the fandom. This has helped clear it up. *hugs*

[avariecaita.livejournal.com]

there is no such thing as a truly original idea

I disagree. There may not be *new* themes, but there are new ideas all the time. I'll use JRR Tolkien as an example for a moment. His themes were not original or new. However, some of his ideas were quite original. For example, "Hobbits" had never existed before he thought them up. For the sake of "fandom" we could look at JKR's work too. Sports - not a new theme, but "Quidditch" is completely her own original idea.

Just my two cents ;)

[melissa-tlc.livejournal.com]

Ah, but Quidditch has origins in soccer and volleyball and a bunch of other sports; it all springs from somewhere. I'm not a fantasy expert,but the Underdog championing being what it is, I'm sure there are little people who have done great things *somewhere* in the canon before Frodo came along. In fact, there are a few at the tip of my tongue right now, but it's late and I've had a 2.5 hour commute, so they're not showing themselves. But yeah, there is a history of little people doing great things. Assigning them as Hobbits is a case of the signifier/signified; the signifier (name 'Hobbit') always diminishes the signified (the essence of a Hobbit), because it puts constraints on the pure idea of something. Calling something a Hobbit just gives this collection of borrowed ideas form/mold/rules, shapes it into another thing that can be called an "original idea."

Granted, many things are a LOT more original than others - but there's really nothing that springs from *nowhere*. The Bible? I don't even know. (Bad Catholic, Bad Catholic...) :)

[avariecaita.livejournal.com]

has origins in soccer and volleyball

Exactly - themes. The amalgamation of the above is a new idea. Signifiers/signified are just themes. The big picture, if you will. Well, in my silly mind it all makes sense.

The Bible

*tee hee* which one? ;) Although many of the stories in the Bible (standard Christian version) are just retellings of pagan tales (the phoenix springs to mind - new testament, or the flood - old testament). But, I think a *new* idea is how the stories are presented. There are only so many themes to write on, but it's how you tell it that brings you originality.

Thanks for making me think!

[melissa-tlc.livejournal.com]

Exactly - themes. The amalgamation of the above is a new idea.

Oh, no! Those aren't themes! They are the things from which Quidditch is derived, making it *not* a totally original idea!

Signifiers and signified are not themes either! They are what you call something and what something actually is! Here's my dict def of theme:

1. A topic of discourse or discussion. See Synonyms at subject.
2. A subject of artistic representation.
3. An implicit or recurrent idea; a motif: a theme of powerlessness that runs through the diary; a party with a tropical island theme.
4. A short composition assigned to a student as a writing exercise.

The only one I see relating is #3 - but even that is clear that soccer and volleyball are not *themes*. You have themes of powerlessness, not of soccer.

I agree that how a story is presented is a new *idea* - but it is *not* truly original. Quidditch is not 100% original, or it wouldn't have ties to *anything*. It is VERY original, sure. But not an entirely *new* thing. It's a lot more "new" than anything I, or many other people, could come up with, but it's not inspired from thin air. It's inspired from other sports.

re: new ideas

[pumpkin-trina.livejournal.com]

I'm afraid I disagree with you as well. "Quidditch" is a new word and a new sport and a new idea, even if the game itself *is* derived from other sports. What you are saying is akin to saying "Quidditch" is made from letters of the alphabet and therefore is not an original word. The letters were there, yes, but someone took them and used them to create. JKR has done the same thing with Quidditch the game, taken raw materials and melded them into something labeled "new."

Your point is extremely thought-provoking, though. Have "all the really good themes been used up, turned into theme parks?" I think not. The universe changes, expands, the world is born anew, mutates, evolves. If there are new things in the universe there will always be a new idea to talk about, something new to invent, a new idea waiting to be born.

Getting pretty philosophical in here. Can someone turn on a fan?

(sorry to hijack your journal Heidi; really was only coming over to wish your baby a happy birthday Monday -- I think I read somewhere you will be induced then? Good luck and best wishes for a healthy, uneventful delivery)

This was the crux of it for me ...

[pumpkin-trina.livejournal.com]

"It would be better if the term "plagiarism" were confined to literal copying, and moreover literal copying that is not merely unacknowledged but deceptive."

Intent is critical. Honest mistakes happen. But when a person purposefully uses another writer's words for their own gain (personal or profit, IMHO), that is plagiarism.

"Inspired by" doesn't count. It is a tribute to the original work, not an abomination (unless it is a really wretched version of a classic, like "10 Things I Hate About You").

:D

I have been a professional journalist for 12 years and plagiarism is a big issue in my field. Just look at the New York Times.

Great article, Heidi.

[avariecaita.livejournal.com]

Hmmm, good point; however, I think I meant to say Soccer is a "theme" in that it has 'sportsmanship,' 'winning/losing,' etc. and so does Quidditch. Will try to be clearer. Sometimes I forget that people can’t read my mind, and can only decipher my ramblings from what I type ;)

The more I think about this the more I wished I had paid attention during my lit theory and philosophy courses. They would have only depressed me, though. To think that in geological time we have not been here (Earth) for that long, yet already expounded all 'ideas' is depressing beyond words. Why does anyone continue to re-hash old ideas?!

I spent all day trying to think of a clever “idea” that did not have some alternate origin. I just couldn’t do it. We don’t know what came before the written word, but we do know that hero tales, et al were an integral part of our humble beginnings. So really, if you look at it this way – there are no new ideas. *depression sets in* If you are a religious person, I suppose you could agree that all ideas came from God, and therefore, man can never have a “new/original” idea. But then one could go on a tangent about God being an idea. And that’s enough to make my head spin.

The optimist in me wants to believe that there are new ideas out there waiting to be hatched, or else why do I bother to write at all?!

I like the literary definition of “signifier/signified.” Signifier = the perfect idea of a thing. Signified = the copy of that idea in literature/the world. There’s a philosophy that teaches: there is a perfect idea of a chair, and all the chairs we have are just copies of that idea. We will never be able to completely grasp the perfect idea of “chairness.”

*fantastic discussion*

PS: I don't think Hollywood has ever had a *new* idea.

[Aside: Sorry Ms Heidi for taking over your space. Found this entry through a blind “friend of” search. Best wishes for the birth of your baby!]

[heidi8.livejournal.com]

[Aside: Sorry Ms Heidi for taking over your space. Found this entry through a blind “friend of” search. Best wishes for the birth of your baby!]
No problem! Am just reading the thread and enjoying the disucssion y'all are having...

Re: new ideas

[melissa-tlc.livejournal.com]

Sorry to hijack, heidi! :-) just having fun up in here. Hope you're in labor or something...

I'm afraid I disagree with you as well. "Quidditch" is a new word and a new sport and a new idea, even if the game itself *is* derived from other sports. What you are saying is akin to saying "Quidditch" is made from letters of the alphabet and therefore is not an original word.

No, that would be what it was if I said Quidditch is a sport, and baskeetball is a sport, therefore Quidditch is not new. Quidditch is a new word, yes - not an entirely original word because more than just letters are used to form it. Two distinc words are in it "Quid" and "ditch". They have nothing to do with "quidditch," these words, but the presence of these words make the whole word Quidditch less than 100 percent original. (So maybe it's what, 97 percent? It's still ridiculously original. Just not 100.)

JKR has done the same thing with Quidditch the game, taken raw materials and melded them into something labeled "new."

Quidditch is a new sport, yes, I agree. Is it an entirely original sport - oh, no. They play with the same maneuvers, the same concept, the same influences, as many, many other sports. It's original insofaras we've never seen anything like it - that's completely true. I'm not trying to say that Quidditch is *copied* from *anywhere*. It is just not 100 percent original - to be 100 percent original you must shrug off assocations, and I don't think that is possible. It's definitely not true in this case.

Your point is extremely thought-provoking, though.

why thank ya

Have "all the really good themes been used up, turned into theme parks?" I think not.

Oooh, neither do I. At all. They aren't used up in the least - there are a million ways to mutate them and come up with fresh concepts. But ideas always have roots in other ideas, it's just a fact. It's like a chicken before the egg thing - will we ever know where an idea truly comes from? Hm.

The universe changes, expands, the world is born anew, mutates, evolves. If there are new things in the universe there will always be a new idea to talk about, something new to invent, a new idea waiting to be born.

Yeah, I'm not saying there's nothing new. Just not *entirely* new. Not something that cannot say that it has its roots *somewhere* else. That be all. :)

[melissa-tlc.livejournal.com]

I'm enjoying the discussion too! I'm, like, giddy (and I don't, like, speak, like, like this, like).

I think I meant to say Soccer is a "theme" in that it has 'sportsmanship,' 'winning/losing,' etc. and so does Quidditch -

I agree there - but Quidditch *uses* the same themes, not is made up of the same themes...or something that made sense a second ago.

I spent all day trying to think of a clever “idea” that did not have some alternate origin.

I do that a lot. It's terribly hard. I still can't think of one either, hence my whole theory. However, it's just the same as anything else in that you cannot really ever achieve perfection, at least I think. You can't quite get *there*. You can get very close to there, and you can make something that is so close to completely original that it blows people and maybe yourself away, and maybe you have to be satisied with that.

And maybe you *do* have an original idea but because we're so saturated with information these days, there is no way to properly judge if it was original or not? You know? Say JKR had NEVER heard of the sports that she combined in Quidditch - then that would have maybe been an entirely original idea, but it would never have been judged as such, because society as a whole knows all about those sports. And then maybe JKR herself would start to doubt whether it was truly original or not.

Urgh, I'm making my head hurt.

I like the literary definition of “signifier/signified.” Signifier = the perfect idea of a thing. Signified = the copy of that idea in literature/the world. There’s a philosophy that teaches: there is a perfect idea of a chair, and all the chairs we have are just copies of that idea. We will never be able to completely grasp the perfect idea of “chairness.”

Isn't it useful? It's a good excuse too, if you feel like being lazy - if I'm writing and I just can't pull out another description I throw up my hands and say, THAT'S IT! IT CANNOT BE DEFINED WITHOUT DIMINISHING THE IDEA OF IT! and walk away.

(Actually, I don't. Mostly I go for a cookie.)

But there was a Buffy episode that dealt with it too - the very famous one, "Hush," that was silent. It was all about the ideas and emotions that can only be expressed in their pure forms without the restrictions and inevitability of language. Fantastic episode.

[avariecaita.livejournal.com]

Found this while reading the other night. Quite relative to the discussion, and a bit of a "silver cloud lining" for newbie writers everywhere ...

"Originality does not consist in saying what no one has ever said before, but in saying exactly what you think yourself."
~ James Fitz-James Stephen