Boromir plagiarism memeRecently a fellow indie author reached out to discuss a manuscript he’d been working on with another author. Production had been going swimmingly, but unfortunately they’d run into a sticking point halfway through the second book in the series.

You see, their main character is (or was) a female druid named McCool.

This author is a very nice fellow, which I knew because we’d met previously at a fantasy con and briefly talked shop. He’d left me with a favorable impression and vice versa, so when he reached out I had no problems discussing the issue with the intent of finding some sort of equitable solution.

We spoke over the phone, he described the character and plot to me, and I concluded that it was sufficiently different from my own characters and stories to be of no concern, professionally or otherwise. I suggested that a simple name change would solve the issue. He agreed, and that was that.

But What If…?

Understand, this author didn’t need to reach out to me about his issue. He could have simply said “f*$# it” and published the book. But, he was professional enough to contact me and let me know what was up.

That’s all well and good, but what if the book in question had been very similar to my own, previously published works? What if it wasn’t just a similar name that was in question, but major plot points as well?

Well kids, that’s the topic of this week’s blog post—plagiarism. What it is, what an author’s rights are to protect themselves from being plagiarized, and when similarities do and don’t constitute plagiarism (and copyright infringement).

Grab a beverage, because this is going to be a long post.

Ah, Plagiarism

PLA’GIARISMnoun [from plagiary.] The act of purloining another man’s literary works, or introducing passages from another man’s writings and putting them off as one’s own; literary theft. (Webster’s Dictionary 1828)

Plagiarism is always a concern for any author, especially in the digital age. And while piracy is a much greater issue for all creatives—especially authors—currently it’s not uncommon for authors to find their works published online under another person’s name.

But what, exactly, is plagiarism?

The act of plagiarism is, put simply, passing someone else’s work off as one’s own. Or, as Webster’s Dictionary (1828) puts it, it is “literary theft.” This happens more often than you might think on platforms like the Kindle store and Wattpad, and it can be difficult for authors to get plagiarized works removed from those platforms.

Of course, U.S. and international copyright law does provide protection to authors against plagiarism. However, first you have to prove that your work was stolen, and that can be more difficult than you might think.

Literary Concepts and Plagiarism

The definition of plagiarism seems to be fairly straightforward, but where it gets tricky is in defining what exactly qualifies as stealing someone else’s work. For example, if I re-write someone else’s ideas in my own words, is that plagiarism?

As far as the legal definition of plagiarism is concerned, it’s very similar to Webster’s definition. Here’s how Law.com defines plagiarism in the legal sense:

“…taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one’s own product.”

Interestingly, to clarify the meaning of “literary concepts” their definition cites “plot, characters, (and) words.” As for “words,” well, that’s easy. If someone uses the exact same language of a previous publication by another author in their own written work, and then passes it off as their own, they’ve obviously committed plagiary.

But is plagiarism illegal? The answer is, it depends. The short answer is that it can be, if the act of plagiarism infringes on another individual’s intellectual property rights, and there can be both criminal and civil consequences for such a violation:

Criminal Copyright Infringement

“There are four essential elements to a charge of criminal copyright infringement. In order to sustain a conviction… the government must demonstrate: (1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain.” (Source: Department of Justice Archives)

Civil Copyright Infringement

“Copyright is a bundle of exclusive rights… Section 501 of the copyright law states that ‘anyone who violates any of the exclusive rights of the copyright owner… is an infringer of the copyright or right of the author.’ Generally, under the law, one who engages in any of these activities without obtaining the copyright owner’s permission may be liable for infringement.” (Source: U.S. Copyright Office)

And as for re-writing someone else’s ideas in your own words, so long as you credit the source in your own work, it’s not plagiarism. But if you lead others to believe that you wrote that passage all on your lonesome, that’s definitely an act of plagiary.

Could the other author sue you for it? Maybe, if they could convince a judge that you infringed on their copyright. And that brings us to the next topic, namely what is and isn’t protected by copyright laws.

Ideas vs. Expression

You may have heard it said that you can’t trademark ideas, and that’s absolutely true. Copyright law was written to protect expression and creativity without unduly hindering innovation, which is why ideas generally aren’t protected under trademark and copyright law (click here for more on this).

If that’s the case, then aren’t plots and characters ideas that can’t be trademarked?

Not necessarily. Of course, plots and characters start out as an idea in a writer’s head. However, the manner in which the creator conveys their ideas in the written word qualifies as a unique expression and creation that is protected by copyright law— from the moment of creation.

Thus, the plots and characters that an author creates are just as protected under copyright law as the unique, original language they use in their written works. In other words, if someone uses your characters in their books, they are violating your copyright.

And if someone writes a book that shares the same plot as yours, they’ve essentially written a derivative work. Even if they write it in their own words, you have legal cause to file suit against them for plagiarizing your work. And if the court decides their work is “substantially similar” to your own, you’ll likely be awarded damages for the infringement.

Legally speaking, “only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work,” according to the U.S. Copyright Office. If you don’t give someone approval to use your characters or plot in their work, and they create a derivative work, that’s an infringement of your copyright.

Yes folks, fan fiction can be considered copyright infringement, unless the courts determine a fanfic story is protected under the doctrine of fair use. Most authors are content to let it happen if the fan fiction is not published for profit, and in such cases they’ll often let it slide in order to maintain goodwill with their fans and readers.

What to Do If Your Work is Plagiarized

If your work is being plagiarized, you have several options. The first thing to do is to contact the website or platform that published the work in question. Let them know that you believe your work has been plagiarized, inform them that you are treating it as an infringement of copyright, and be prepared to prove that you own the copyright to the original work.

Yes, this means you need to have a copyright registration certificate in hand. Most publishing platforms will ask to see your copyright certificate before they’ll investigate an infringement claim. And, if you later have to take it to court, the Supreme Court recently ruled that you must have registered your copyright before you can sue for infringement.

Speaking of which, who should you contact if Kindle or Wattpad or some other distribution platform refuses to remove the plagiarized work? First, I would suggest that you get an experienced intellectual property attorney to review the circumstances surrounding the alleged act of plagiarism, so they can tell you if you even have a case.

Then, if they do advise you that you have a legal right to seek damages in court, weigh your options. Lawsuits are expensive, and you might be able to avoid all that by simply having your attorney send the plagiarist a nasty-gram advising them to pull the plagiarized work from publication. Failing that, then your only option is to take it to court.

Also, be aware that you can’t lose your copyright by failing to defend it. Unlike a trademark (which must be defended for the trademark owner to retain exclusive rights), you can’t lose your copyright due to inaction. However, the statute of limitations on copyright infringement is three years from the last act of infringement.

In the case of a continued infringement (for example, continually displaying a plagiarized work online), the statute of limitations only starts when the infringing party ceases to infringe on the copyright. Meaning, if you send a cease and desist letter, and the plagiarized work is removed from publication, you still have three years to sue the person or entity (corporation, LLC, etc.) who violated your copyright.

Obviously, it’s up to you whether the time, expense, and trouble is worth it. But, it’s nice to know you have time to decide.

Recent Copyright Infringement Cases

If you’re interested in this topic, I suggest that you read up on recent copyright infringement cases. Here are some links to recent high-profile cases to get you started:

https://www.forbes.com/sites/michellekaminsky/2019/04/30/nora-roberts-sues-brazilian-author-for-copyright-infringement-over-alleged-multi-plagiarism/#60e404a4390d

https://www.huffpost.com/entry/the-art-of-fielding-chad-harbach-lawsuit-copyright_n_59c2ca97e4b06f93538c1b5c

https://lawstreetmedia.com/tech/publishers-authors-allege-e-book-copyright-infringement/

https://www.npr.org/2020/06/03/868861704/publishers-sue-internet-archive-for-mass-copyright-infringement

And then there’s this….

https://www.plagiarismtoday.com/2020/04/08/amazons-coronavirus-plagiarism-problem/

6 Comments

  1. Frank Fulmer on September 4, 2020 at 4:06 pm

    I tell you something boy I’m 77 years old I have read a book a day every day since I was 17 you do math that’s a lot of books and a lot of reading but I have noticed incre I have notice that there are a lot in the front authors Idownloaded from amazing Amazon that there seems to be a lot of plagiarism going on lot he same characters a lot of the same stories just different authors. I don’t know how they’re getting away with it. I don’t want to drop dime on anybody but it’s a damn shame there’s no respect among in dy authors. If somebody was stating my life blood’s work and livelihood I believe I take my pistol and shoot the damn elbows out and see how well they stole after that. Course just me and I take it personal. the two ones that’s going to have to take care of it cuz it sure livelihood being stolen.

    • M.D. Massey on September 5, 2020 at 9:48 am

      It could easily be argued that the Kindle platform encourages plagiarism because there’s little to no barrier to entry and very little attention given to policing stolen content. It’s only when you realize that Amazon isn’t primarily a book-selling company, or even an online retailer, but a data aggregation company, that it starts to make sense. Amazon is in the customer acquisition game, so the more “stuff” they have to sell, the better. And while they have changed their algorithms recently to try to catch more scammers on the Kindle platform, they could do a lot more. But they don’t, because it just doesn’t make sense for them to do so, from a business model perspective. In the end, it’s much cheaper for Amazon to leave it up to individual authors and publishers to police their platform. I don’t want to complain too much, because the Kindle has been a huge boon for authors… but Amazon is one of the preeminent tech companies on the planet. If they decided to clean up the Kindle platform and purge it of all plagiarized content, they could. They just don’t care enough to make it happen.

  2. AMPWS on September 4, 2020 at 9:49 pm

    Half the incomplete stories on my hard drive are incomplete for that very reason. I go back to the story to continue a few pages and reread and realise that the plot is based on something I read 40 years ago. Half the time I just give up or turn it into a fanfiction.

    Kudos to those who can come up with original plots.

    They deserve copyright protection

    • M.D. Massey on September 5, 2020 at 9:56 am

      There are only so many plots and so many stories to tell. The truth is that most “new” stories are simply old stories that have been retold in new and interesting ways. For proof, all you need to do is pick a movie, novel, or an episode of a TV show, then flip through Plotto to find a similar plot outline. Don’t give up on a WiP just because it reminds you of another story. Instead, change up the characters, subplots, and settings and then add a twist that makes it your own.

  3. Jill King on September 7, 2020 at 11:27 am

    I have also been reading at the very least 2-3 books a week without stop since I was 14 years old, as Frank Fulmer stated. Since I am 60 years old, that is a total of 46 years of reading. I can also agree that there are tons of books that have a similar MO to many other books I have read. I also write, and check and double check each book over and over again as I write, and have had to go back many times and re-write a section now and then, to make my work does not reflect writings of stories I read even 40 years ago, simply because, once read, the idea is there subconsciously.
    I have had a poem that I found on one of those “forward into eternity” social medias, and it was word for word exactly what my poem said. The only thing it did not convey was my name, in fact, no name at all.
    There was no one I could contact to complain, because it was anonymous. Also, it did not in any way make any money on the writing. I decided to let it go. That said, if I see the poem in a book sometime in the future, I will be more serious about making sure that the right person is getting financial gain is getting credit for the poem, namely me.
    Thanks for the information on plagiarism. It’s a good reminder to those who may have heard about it before, and to teach those who did not understand what plagiarism is.

    • M.D. Massey on September 8, 2020 at 4:22 pm

      Jill, that’s why I don’t read urban fantasy when I’m writing a UF novel. I avoid whatever genre I’m currently writing (for the last few years, solely UF) so I the ideas, style, and voice of other authors doesn’t bleed into my current WiP.

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