Vail Law: A primer on plagiarism
July 20, 2010
“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated.”
These are my own original words and thoughts. OK, not really. I borrowed them from Thomas Paine, patriot and statesman, who, in penning these words in December, 1776 in his revolutionary booklet, “Common Sense,” was instrumental in launching the American colonies in their fight for independence.
Not only were Paine’s words eloquent, well-cadenced and stirring, but his call-to-arms – he was the first to openly call for severance from Mother England – were thoughts and inspiration that stirred a nation to action and, ultimately, liberty and nationhood.
And that, in a nutshell, is the essence behind the legal concept of plagiarism; words and thoughts.
A candidate’s woes
As you may have heard, Colorado gubernatorial candidate, Scott McInnis, is suffering a heap of woes over allegations that a series of articles he penned on water issues were, in fact, pilfered from the writings of other authors. While there is nothing inherently wrong about borrowing from others – even liberally so – what distinguishes plagiarism from a little benign filching is the concept of “attribution.”
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As those of you who read this column know, I steal like a bandit. While my favorites tend towards the folk wisdom of Ben Franklin, Yogi Berra and Mark Twain, I have written these columns with words and wisdom ranging from Sun-Tzu to Kierkegaard to Bryon “Whizzer” White.
What is different, though, about my purloining and that of which McInnis is accused, is that I note whose thoughts and words I’m using. In other words, I “attribute” the source of my theft and direct to whom you should give credit. McInnis, it appears, failed to do so and, in so failing, took credit where none was due.
To plagiarize, according to Webster’s (note, the attribution) may be defined as “to take ideas, writings, etc. from [others] and to pass them off as one’s own.”
Black’s Law Dictionary is more precise and less forgiving, defining plagiarism as “The act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind.”
‘Akin to theft’
To be liable for plagiarism, one need not duplicate another’s work the way a child might trace another’s drawing. It is sufficient if unfair use is made of the work by lifting or “borrowing” a substantial portion of it. It should be noted that it is not plagiarism if the thoughts, ideas or even substantially similar words were arrived at by two authors independently.
Plagiarism is akin to theft. It is the taking of something that isn’t yours and purporting to make it yours (or, perhaps, more accurately, to have others believe it is yours) and thereby derived a credit or advantage from it or to otherwise profit from it. In McInnis’ case, he was paid $300,000 for his series of columns.
The law has long recognized the proprietary value of works of literature and other creative endeavors. The original lyrics to the Beatles’ “A Day in the Life” sold in June at auction for $1.2 million, although, admittedly, a substantial part of value was in its artifactual nature. Still, copyrights exist for the very purpose of protecting the rights and interests of writers, creators and thinkers. What one conceives and what and how one presents it has value which is recognized at law.
While there is the moral question too about what Mr. McInnis is accused of, what the law may be thought of, in substantial part, is a reflection of the mores, social codes and values of the society in which the laws exist. Often, what is frowned upon in a moral-ethical sense has its counterpoint in law.
In the last analysis, if the allegations are true, Mr. McInnis, took someone else’s ideas and/or their words and passed them off as his own. As such, his actions are, at least in some sense, larcenous.
I close with this: “No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were; any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls, it tolls for thee.”
My sentiments exactly. Except the words and thoughts belong to John Donne.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at firstname.lastname@example.org.