Recently 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.
PLA’GIARISM, noun [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:
And then there’s this….