In the recent discussion of McEwan, Andrews, plagiarism, and punishment, there was a link provided by sherryfair to a New Yorker article by Malcolm Gladwell wherein he describes his reaction and subsequent research into plagiarism after text from an article he wrote was lifted for content in a Tony-winning play by Bryony Lavery.
In the article, he states,
A successful music executive has to understand the distinction between borrowing that is transformative and borrowing that is merely derivative, and that distinction, I realized, was what was missing from the discussion of Bryony Lavery’s borrowings. Yes, she had copied my work. But no one was asking why she had copied it, or what she had copied, or whether her copying served some larger purpose.
That entire idea threw me for a big, big loop, and ultimately, as I wrote in a comment to the original discussion, gave me a lot to think about. Plagiarism excused by the idea that the words stolen were used in service to a greater art? Color me befuddled. The discussion of McEwan’s plagiarism of Andrews’ work also touched on the question of what IS plagiarism, and is it ever ok in the course of writing?
The issue of plagiarism comes up every so often, and there is usually a lot of discussion about the idea when it does – from “what’s the big deal” to “how come the penalty isn’t more serious?” When the story broke about Opal Mehta, our focus at SBTB was on Alloy, the book producer, and what role they may have played in allowing a book that lifted from so many sources to be published and optioned for film. With McEwan, Candy mentioned a feeling of personal shock: “It was almost like finding out my best friend had been cheating on her husband without my knowledge all this time; there’s a distinct feeling of ‘how could you?’”
The language of plagiarism itself is so damn bizarre: ‘borrowing.’ ‘Lifting.’ ‘Unintentional copying.’ Like someone’s book slipped and fell into the scanner. Oops!
Since this discussion was taking on a good bit of heat and debate, I did some asking of nosy questions about plagiarism in the romance publishing world. Whom did I ask?
Nora Roberts, who has quite a bit to say about the subject.
Sarah: I know in some interviews I’ve read, you’ve called it “mind rape,” which is a very apt description. How do you answer those who say it’s no big deal, or answer anyone who tries to define when it’s ok to lift passages without attribution and when it’s not? Somehow there seems to be a debate that sometimes it is, and when that might be. To quote Candy: *headdesk*
NR: It’s amazing to me how many people—readers, writers, publishers, shrug it off as if it’s no big deal. It’s the biggest deal there is for a writer….
It’s pretty hard to debate or discuss with someone who considers theft—and plagiarism is theft—no big. I even had several other writers suggest that it was flattering when it happened to me.
My response was something like: Admire my earrings, I’m flattered. Take them and claim them as your own, I’m calling the cops.
To me it’s black and white.
If you lift someone else’s work—a paragraph, a scene, a number of scenes—and pass it off as your own work you’re a liar and a thief. End of story.
I will never understand how some think it’s okay. But there are a lot of things I don’t understand.
When those who take another’s work and change a word here and there, do some subtle paraphrasing, it’s also obvious to me they KNOW it’s wrong. And then come the excuses when they get caught. They didn’t realize, it was unintentional, it was homage, whatever.
Believe me, I’ve heard it all.
And many will assume it HAD to be inadvertant when the victim is a well-known writer. Because it strikes people as stupid to steal from someone who’s well-read. But it happens often. The other pov is if you’re going to steal, why not steal from a proven product?
SBS: When the story broke about Dailey’s plagiarism of your work, the joke was “this is why romance sounds the same” and it didn’t seem that the matter was taken seriously in the press, not that romance often is. Was it difficult to pursue action at that time? Has the attitude changed or improved that you’ve seen?
NR: It was extremely difficult to pursue the plagiarism with Dailey. Emotionally, it was a bitch. The press was, for the most part, snarking and sniping, and I had to answer it. What choice was there? Letting it go was never an option, though dealing with it quietly was my first choice. She opted otherwise, and again from my pov, that strategy back-fired on her.
Honestly, I haven’t seen much change in attitude, not from the press, other writers and some readers. And so whenever the issue crops up, I speak out again. I consider plagiarism the most important line no writer should cross, and certainly one no writer should be allowed to cross with impunity.
I do not support theft of intellectual property, but I would support shortening the length of time one gets to keep material copyrighted. One main reason that authors get to copyright their material for 70 years after they’re dead in the United States is because the Disney company has copyrights that would expire if the length hadn’t been extended.
The goal of copyright protection should be, as stated in the U.S. Constitution, to give “authors and publishers” protection “for a limited time.” Heck, I have no problem with that “limited time” being the author’s lifetime, even if the author lives to be 110 and wrote her/his first work at 18. But after that? Nope. Expire it.
Of course, all material one uses should be cited, whether it’s currently under copyright or not, unless anyone can easily recognize its source. I don’t think, for example, if I include a Bible quote in what I write that most readers will think I honestly wrote “Do unto others as you would have them do unto you.” And people who don’t cite and are taking from others are greedy and lazy.
But that doesn’t mean people should have unlimited copyrights.
But that doesn’t mean people should have unlimited copyrights.
Why not? I created the work, didn’t I? Why shouldn’t I be able to leave my intellectual property to my heirs the way that I would leave a painting I did or an ashtray I sculpted? I think that life plus 70 is more than fair. To lose a copyright simply because the author dies makes no sense.
Another problem I’ve seen happen twice is people stealing the online stories from eHarlequin. One was rewritten with new character names and new ethnicities and sold to an epublisher. An eagle-eyed reviewer caught the thievery and reported it to the original author, who not only had Harlequin do their legal bit, but also filed charges against the offending author within RWA. The whole matter was very hush-hush, but RWA took the situation very seriously and acted accordingly.
I’m really glad to hear that RWA took it seriously; IMO self policing is a very important aspect of discouraging the theft of intellectual property.
Although I haven’t given the time of copyright issue enough thought to form an opinion, one thing that is striking about the comparison between a lamp or an authored book devised in a will is how in conflict some of our ideas about intellectual property are with those of real property. Our real property system, for example, is really founded on the idea that we should do everything possible to facilitate the unfettered transfer of property. Consequently, restraints on alienation (sale) of property in trusts and wills are often voided, and even partial restraints are given extra scrutiny. So while our system favors the free-flow of real property, we have different views of intellectual property. In real property, for example, theories of ownership based on how much labor is added to particular goods have influenced our system, which, again, is somewhat different in regard to intellectual property. Maybe one of the reasons some of the issues are so complex is that the relationship between real property and intellectual property in our overal system is not such an analogous one, at least in some aspects.
In the middle of all this confusion lies a great opportunity for the Romance community to clear up our own corner of the intellectual property debate and serve as a benchmark for others.
We are perfectly capable of defining our own nonbinding standards to provide guidelines for individuals and the publishing community. For example, Romance Writers of America would be perfect for this role—they could set up a committee to research the problem, gather data, conduct interviews, distribute surveys, and then come up with a set of standards to be approved or rejected, either by the board or the membership. But if RWA understandably hesitates to take on such a role, Ms. Roberts and other prominent authors in the community, as respected role models, could do the job themselves with much less hassle.
I know what I’m talking about. For decades, my husband, a prominent scientist, struggled as the leader in his area of research to protect his discoveries from competing researchers. How the thieves stole from him was insidiously simple.
In the scientific/academic community, it takes a great deal of time to publish new research under the archaic “peer-reviewed journal” process. While my husband was waiting for the process to grind on, his rivals would simply leak his discoveries to the press under their names, failing to credit him. When he confronted them, all the rivals had to do was shrug and say it was the press who had failed to credit him…and meanwhile, the intellectual thieves would receive accolades and promotions at their own academic insitutions. Though my husband was at the top of his field, needed no further promotions or awards, and had no shortage of exposure in the press himself, he understandably wanted credit for his own work and resented others advancing in the field on the basis of work that wasn’t theirs.
My suggestion in the end was that he band together with the other top professionals in his field, set standards, and ask that all scientists in his field voluntarily consent to abide by them. Those who refused to sign the articles of agreement would then be clearly branded by peers as plagiarists and not to be trusted.
It’s astonishing how effective peer pressure can be, even though it has no legal system to back it up. History also teaches us that, when a field sets its own standards, over time these standards eventually tend to become codified in the justice system in one form or another.
I truly feel for everyone who’s been damaged and hurt by people who have either no sense of ethics or who’ve chosen to put their own self-interest above all other considerations. I myself would be willing to volunteer to help in the effort, if it ever came to pass.
“Why not?” (hold copyright in perpetuity)
—Because the Constitution of the United States, which sets up the right to begin with, says it has to be for limited times. 🙂 Does the law where you live say that copyrights must be held in perpetuity?
I’m taking the legal standpoint on it. If you have a law that says, e.g., that for a “limited time” you can’t sell eggs in a district, it should be a limited time, not forever.
Con Law was my specialty in law school. I tend to think that if the Constitution says “limited time,” that is what it means. Not life plus forever so that the Disney Corporation never has to deal with actual competition.
In some instances, also, copyright law has been used to harm innocent artists. I don’t know if you’re familiar with case law on this issue, but I read one case where an artist who was never shown to have been exposed to a copyrighted work made a new work that sounded a bit like a copyrighted one (IIRC George Harrison’s “My Sweet Lord”?). The court held that the artist could be prosecuted for infringing the copyright because it was possible the artist had heard it unconsciously and just didn’t remember.
Having a shorter copyright time would encourage the creation of new artworks, rather than encouraging abuses like the above.
Kassiana, I was responding more to the idea that once an author dies, the copyright should instantly die, too. My heirs should be able to enjoy the fruits of my labor. What if died tomorrow? I had seven books out this year. My daughter should be able to enjoy the royalties without interference from someone posting my books on the Internet for everyone to get for free—or worse, posting those books under their own name. And what happens to the book that I’ve written that haven’t been released yet? Do they go out with no copyright at all?
I’m sure there is some law either legal or ethical (I’m no lawyer here) that just because something is in the public domain doesn’t mean another author can take credit for the work. I mean, I can’t post a Shakespearean play and say I wrote it, can I? It’s still plagiarism, right? Even if it’s not something the heirs of Shakespeare can sue about?
We’re talking two different issues, I’m sure.
Kassiana, you are referring to the famous plagiarism suit against George Harrison, in which the judge stated that Harrison “subconsciously” plagiarized the tune of “My Sweet Lord” from “He’s So Fine.” (Harrison had indeed heard “He’s So Fine,” which was a pretty big hit.)
Here’s a summary of the case:
http://abbeyrd.best.vwh.net/mysweet.htm
IIRC, the original copyright term was life plus thiry years, which would be sufficent to provide for any minor children until they became self-supporting. It never was intended to carry them for life, or to provide a corporation with secured income.
“We’re talking two different issues, I’m sure.”
—Most likely. As I’ve extensively studied copyright and intellectual property law from a lawyer’s perspective, I felt I should speak up and add what I see in copyright in general.
I’m not arguing that artists should have no right to their work, nor that people should be able to make unlimited copies credited to themselves as author/creator. I just think that copyright should not be the method used in those instances. I apologize if I wasn’t as clear as I was inside my head.
“Kassiana, you are referring to the famous plagiarism suit against George Harrison,”
—Thanks, Sherry. It’s been eight years since I was in law school, so I didn’t remember the specific case.
I do think it would be unfair to penalize an artist who sincerely made an original work of art which the author did not know paralleled another work s/he had never heard/seen/written.
“IIRC, the original copyright term was life plus thiry years,”
—I think you’re right, with one renewal after the original registration. A lot of old Agatha Christie works I own have a thirty year renewal date on them.
Good point. All postings on this topic are excellent.
I was wondering if part of the reason for the muted reaction to this lies in the different ways people regard and treat fiction and non-fiction, with the latter being all about “fact” (imho, this is debatable). I don’t know if anyone else has come across the view that if non-fiction writing is only required to communicate fact with clarity (someone should tell those pesky post-modernists), then writing non-fiction involves little creativity on the part of the author, who is more of a researcher than anything else (and someone else needs to read more good non-fic – I have a list). This is particularly true when it comes to descriptions of “fact” rather than speculation or argument.
Other people have spoken about how plagiarism is viewed in education, and I think the fiction/non-fiction divide also affects this. I’ve heard students (and even teachers, but shh…) say that copying chunks of material from a source and inserting them into a “patchwork”-type essay is less egregious than buying an essay off the internet, or even doing the same thing with fiction, particularly if you list your sources somewhere. So copying a descriptive passage from non-fiction, although frowned upon, is not the same as stealing a description from fiction, which is the writer’s own original product. This is because the non-fic description is “fact”, which is everyone’s property. Oddly enough, when it comes to non-fic it’s stealing or rather, not crediting an argument rather than just verbiage that will usually get people in trouble.
And to be fair, the same people take a dimmer view of the situation if the same chunks appear in an essay whose grade is destined to be part of a final mark. But I think all this relates to how essays are used as a tool for learning and even views about the purpose of education. There’s an assumption that students are very unlikely to have many original views, and are better off learning from the existing body of knowledge in order to regurgitate it in a reasonably orderly fashion during an exam. (This interpretation is based on my own experiences, btw. Other people’s might be very different.) So direct copying is frowned on not because it’s stealing, but because this means it’s less likely that a student will have absorbed the material properly. The problem is that this may not be the only message that the student receives.
Anyhow, I could bang on about how this reflects deeper issues within an educational system, but won’t. I also don’t mean this in any way to be an apologia for Ian McEwan. In my opinion, he’s old enough, and experienced writer enough, to take the time to absorb his research properly and use it in an original fashion. But the issues it raises are interesting because the copying was from an autobiography (non-fic) to a work of fiction, and imho this illustrates how the divide between the two isn’t nearly as absolute as the easy labels would imply. (ummm… yes, it’s true many wise and not-so-wise people have written this sort of thing about labels, but surely this argument is now common currency, particularly since I believe it? Nope? Okay, fine. Foucault. He’ll do. And Derrida for Robin.)
I’ve actually come across a few examples of this in historical novels, some of which “borrow” wording very closely from either primary or secondary source material. Often it’s to do with descriptions or more specialised scenes (battles are an obvious one). When I’ve commented on this, other people have told me that it’s because it adds authenticity but that readers don’t like footnotes cluttering up the text, (ignore them – I heart footnotes). Frankly, this annoys me so much it’ll put me off an author for life. Don’t care if it’s in or out of copyright.
But the issues it raises are interesting because the copying was from an autobiography (non-fic) to a work of fiction, and imho this illustrates how the divide between the two isn’t nearly as absolute as the easy labels would imply.
Absolutely. And what I think is happening here is that people who are supporting McEwan are doing so in a really unqualified way (see all the letters from Keneally and Atwood and Pynchon et al), as are those who are comdneming him as a plagiarist. Those extremes, IMO, are clouding all the more complex stuff here, some of which has to do with the conflicted nature of intellectual property law and theory, and some of which has to do with power relations and with ideas about creativity and originality.
One of the things that’s interesting to me, for example, is that I don’t think McEwan in any way hid what he did with Andrews’s text, as his acknowledgments page—a short paragraph with few direct acknowledgments—is on page ten of his book (check it out on Amazon). I don’t think he had a sense of doing anything wrong, and certainly neither do some of his hard-hitting colleagues (the note by Atwood especially got my attention). How fascinating that is, IMO, not only for some of the reasons you point out, but also because of how we might position what McEwan did vis a vis music sampling, for example. Is sampling from another supposedly original work better or worse than sampling from a work of non-fiction that is unfairly relegated to derivative status? I don’t really see this as an issue of Romance doesn’t count or women don’t count, as I could imagine the same scenario with an outside source penned by a man. But I do think it’s an issue that brings into play all sorts of questions about how originality is conceived within the fiction-writing communities (and I don’t think McEwan represents all fiction writers, although he might represent more than we might think). That Andrews was not herself seen as an original and creative source is truly unfair, IMO, and issues of copyright aside, how do we compare what Stephen Ambrose did, for example, with what McEwan did? How would Atwood and McEwan and Pynchon see that comparison? Can we have a coherent sense of what constitutes original and derivative writing and still foster the kind of creativity that often comes from intertextuality? Are the expectations different in different contexts and should they be?
The educational setting thing is much clearer to me, and I don’t just see it as a function of unoriginal student work (and personally I think it’s worse to affirmatively copy than to purchase wholesale a paper, but that’s a tangent, I think). For me, at least, the issue is not one of expecting students only to do derivative work (and the dangers in communicating that message—however indirectly—to them); it’s about fostering respect for scholarship as original, and for them as apprentice scholars understanding and respecting the difference between opinions they have worked to arrive at and opinions that others have worked to arrive at.
Translating this logic to McEwan’s case, I believe that McEwan should have either footnoted Andrews’s book after those descriptions or exercised MORE originality on his own part by making up his own damn scene for stuff beyond, for example, using gentian violet on ringworm, which does strike me as historical fact type information.
But where the clarity ends for me is in how what McEwan did compared to what a student might do should be characaterized. Because I’m not certain they are the *same* thing, even as I think McEwan should have more directly acknowledged Andrews and written more originally his own scene as inspired by Andrews. Because I think the culture of writing and originality and creativity and inter-textualism is much more complex and sophisticated at that level, in a similar way to how we require that students master certain rules of grammar and expression in writing, even as professional writers make their reputations off breaking them.
I thought this article (http://www.slate.com/id/2060618/) in Slate was particularly interesting, especially as it talks about some of the double-edge quality to some of these issues.
Can we have a coherent sense of what constitutes original and derivative writing and still foster the kind of creativity that often comes from intertextuality? Are the expectations different in different contexts and should they be?
I think this is where I wish the debate had centred, because I do think there are a lot of grey areas to be explored here.
The issue of inter-textuality and comparisons to sampling are interesting (thanks for the slate link, btw, and also to sherryfair for the Gladwell link), but I’m having difficulty making the case for it myself in this instance. To my mind inter-textuality implies either something like The Waste Land where the allusions/quotes are meant to be known or half-known by the audience, and/or something more transformative. In a way, if the borrowing were more significant, I would be more comfortable with it. It’s hard for me to tell without making a proper comparison, but the Gladwell case to me feels more like inter-textuality, particularly with the way different productions change their interpretations of a play, although I wish Lavery had been more sensitive to her use of Lewis’ personal experiences.
Because it’s detail in McEwan’s case, I get the sense that he slipped up in his note-taking practices. Not the end of the world as we know it, but something of a shame. If it was deliberate, I have to ask why? I just don’t see what it achieves in this case.
I also don’t buy the arguments about the need for historical accuracy in this case, because I think it’s possible to be accurate about details and not transcribe from a source verbatim. I’m not suggesting that authors not use stories, oddities or details that they find in their research. I don’t have a problem with this aspect of the examples quoted. In fact, from my point of view, the more research, the better. But researchers don’t just read sources, they document them. Particularly when the details are less well-known. (Where to draw the line when acknowledging sources of fact is one of my own personal dilemmas.)
My own personal foibles aside, I don’t even see the need for footnotes. But an acknowledgement (and I’ve read somewhere that this was added to later editions only) that pointed more directly at how he’d used Andrews as his source might have helped if he felt that the rhythm and language Andrews used was so compelling that he needed to use it. And asking Andrews before he published would have been only courteous.
There’s also the argument that they’re technical words and the rules of grammar and usage mean they can only be used in certain ways. But I have to wonder about the sequence of words used in the example quoted about the patient whose skull was crushed. The vocabulary isn’t particularly technical, and I’m sure a writer of McEwan’s stature could have come up with an equally powerful way of describing this scene.
I’d love to get into the academia debate and how comparisons to sampling work, and how they don’t, especially historically (imo, musical language operates very differently to spoken language), but I’ve gone on long enough. I’ll just say that nowadays, many musicians do like to be asked first, and the ones that won’t permit their work to be sampled are the ones who would have probably sued anyway. Also, the power dynamics involved in the importance/popularity of the works play a big part in how things are viewed.
To be fair, I’m not a writer of fiction and I live my writing life (such as it is) in dread that I’ll screw up one day, especially as I do dabble in parody and love to quote and play around with words and style. But I sincerely hope that if I do, the victim is as generous as Lucilla Andrews is reported to have been.
I’m reading now Seek My Face, John Updike, Adolf Knopf, NY, 2002. After the title page, there is a short paragraph. I copy it in here (hoping that I don’t make any illegal steps):
‘This is a work of fiction. Nothing in it is necessarily true. Yet it would be vain to deny that a large number of details come from the admirable, exhaustive Jackson Pollock: An American Saga, by Steven Naifeh and Gregory White Smith (Clarkson N. Potter, 1989), or that some of my fictional artists’ statement are closely derived from those collected in Abstract Expressionism: Creators and Critics, an illuminating anthology edited and introduced by Clifford Ross (Harry N. Abrams, 1990).’
Now, what do you make of this, ladies?
From the LA Times today: http://tinyurl.com/yd7fam
From the LA Times today: http://tinyurl.com/yd7fam
Too bad the above is a sign-in only site. Could you summarize or quote a paper with a no sign-in requirement?
Kassiana, try one of the universal logins as BugMeNot.com: http://www.bugmenot.com/view/www.latimes.com
I also tried to post the original URL from perez hilton’s site here, but I was told it was “blacklisted”—whatever that means. You may be able to link to the article from there, too.
Didn’t work. I guess I’m going to be terminally clueless. 🙂
I hate login sites anyway, though. Papers that won’t let me just see what they have to say without a signup IMO are just interested in spamming my e-mail.
I’m jumping in here to deal a couple more kicks to this dead horse:
Kassiana provided the legal explanation for why copyright into perpetuity isn’t possible, but there are excellent reasons why intellectual property shouldn’t be protected indefinitely—or even for a long, long time—and why having items pass into the public domain after a reasonably limited amount of time isn’t just a good idea, it’s arguably necessary in order to foster innovation and creativity.
1. When we’re talking about patents (which are a whole other area of intellectual property we haven’t touched on at all, but which I’m bringing up anyway), we’re sometimes talking about creations and formulas that could have life-saving applications. It’s all right and good for, say, Glaxo-Smith Kline to come up with a patentable cure for cancer, but it’s not a good idea for them to be able to keep the rights to that forever because it’s in the public interest to eventually have that information available to a wide base of manufacturers and scientists who can reproduce the medication cheaply and who can hopefully innovate and improve on the original formula.
2. Creativity builds on creativity. Disney, who as Kassiana noted is largely responsible for extending copyright protection to the current ludicrous term of life of author + 70, has plundered the public domain extensively and to great profit, from fairy tales to Peter Pan to Alice in Wonderland. Having artwork—whether music, movies, graphic art or literature—pass into the public domain is a GOOD thing, because of the rich material it provides for inspiration, adaptation and riffing.
3. Clearing rights can have a chilling effect on creativity, especially when budgets are small. Check out the story of Mad Hot Ballroom and the ridiculous number of loops it jumped through to clear all the music rights, for example—including cutting out a scene in which somebody yells “Everybody Dance Now” because Warner wanted $5,000 of dollars for that to be cleared.
For an excellent overview of fair use issues and intellectual property infringement from a rather balanced point of view—one that thinks copyright protection is a necessity but which also views the current state of copyright law with a jaundiced eye—check out this comic created by some law profs at Duke University. It’s good reading.
Kassiana, I’m trying to finish a paper right now (I’m a 3L), and when I finish tomorrow I’ll survery the copyright issue I linked to—it’s related to gossip blogger Perez Hilton and the lawsuit over the photos he posts that he picks up from paparazzi (i.e. news items v. creative work).
Candy and EAP—lots of good issues to respond to . . . later.
I’ve attempted a couple of links to other sources on the Perez Hilton story, too, and I also got the “blacklisted” message. Option 2 would probably be to google the name and see what you get.
I find the Hilton case to be fascinating since it sits at the corner of fair and unfair use. Parodying an image that’s in the public domain? Seems fair. Stealing an image and using it before the owner even has a chance to get it released? Seems unfair. How the courts will be able to maneuver through this one without going too far for either protecting or unprotecting images and like content will be interesting.
(Also, I wonder how many companies/people use digital watermarking like what is offered by Digimarc – and how that helps them, if at all, with cases such as this one with Perez Hilton.)
P.S. In addition to Candy’s recommendation, I also recommend The Corporation for a variety of reasons, one of which is an interesting exploration of copyright law and how it helps/hinders creativity.