Creative Theft – Plagiarism vs. Copyright Infringement

“Good artists copy; great artists steal.”  The quote is widely attributed to Picasso. Most likely, the idea existed before Picasso made it famous. The literature is littered with much older discussions of how artistic theft creates new works of art.

As writers, our creative endeavors are shaped by our world. We are a product of our times. We constantly create work that is an amalgamation of inspiration, imitation, influence, and originality. No story is completely original because stories are heavily derivative, built on our experiences and influenced by what has come before us. But how do we stick with the sunny freshness of originality and avoid the shadowy dankness of plagiarism and copyright infringement?

Simple. Like any ethical or legal violation, look at the facts and make an educated judgment call whether to steal or not to steal, crib or not to crib, imitate or not to imitate someone else’s work.

I have talked about plagiarism and copyright infringement before. Below is an update on that article.

What Is Plagiarism?

Most of us instinctively know the answer to this question. Plagiarism is essentially passing off someone else’s words as our own. But it is not just the lifting of text. Ideas, plots, scenes, and characters can be plagiarized too. If there is wholesale copying of another’s creative expressions and presentations without crediting the original author, then there is plagiarism.

There are many ways to plagiarize. The most common types are:

  1. Direct Plagiarism = “the word-for-word transcription of a section of someone else’s work, without attribution and without quotation marks.” This is the most common form of plagiarism. Often direct plagiarism results in copyright infringement (see below). (Bowdoin College. “The Common Types of Plagiarism.” www.Bowdoin. edu.)
  2. Paraphrasing = plagiarism when you fail to cite your source. Often this type of plagiarism is accidental.
  3. Mosaic or Patchwork Plagiarism = “borrow[ing] phrases from a source without using quotation marks, or find[ing] synonyms for the author’s language while keeping to the same general language structure and meaning as found in the original.(Queens College. “Mosaic Plagiarism.”
  4. Potluck Plagiarism = “copying from several different sources, tweaking the sentences to make them fit together while retaining most of the original phrasing.” (SUNY Cortland. “Types of Plagiarism.”
  5. Self-plagiarism or Recycling Fraud = “republishing a work in its entirety or reusing portions of a previously written text while authoring a new work.” (Turnitin. “Is recycling your own work plagiarism.” For example, if I had not mentioned this article was previously published by me, then republishing again would be an example of self-plagiarism.

What Is Copyright Infringement

The US Copyright Office defines copyright infringement as occurring when a “copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” (United States Copyright Office. “Definitions.” copyright. gov.)

The Difference Between Copyright Infringement And Plagiarism

Most people think plagiarism has to do with copyright infringement. Confusing the two concepts is a common mistake. Copyright infringement is the unauthorized use of copyright protected material, which is different from claiming to be the originator of someone else’s work. The former violation has legal ramifications; the latter, ethical.

While copyright infringement and plagiarism are usually mutually exclusive, these gnarly beasts can interbreed.

  1. A writer can duplicate copyright protected work and be both an infringer and a plagiarist if the use of the copyright protected material is without permission and the writer poses as the original author. This is where Direct Plagiarism and Copyright Infringement meet.
  2. A writer can plagiarize a work, like copying a William Shakespeare play and posing as the author, but not be guilty of copyright infringement if the work is in the public domain or the use is considered fair.
  3. A writer can replicate an author’s work, give credit and not be a plagiarist but still be guilty of infringement because the use was unauthorized or did not fall within the fair use exceptions.

How To Avoid Plagiarism

  • Careful research
    • Take meticulous notes when researching, with proper source citations and quotation marks on passages. This way you will remember if the words are yours or have been used before. Do not cut and paste from source material into your manuscript. And do not write with open articles or books on your screen or desk. These shortcut methods only invite plagiarism because copying is much too easy.
  • Give credit
    • If you are using someone else’s words, then follow that expression thought to be written by Samuel Adams: “Give credit where credit is due.” In other words, do not lift words but if you do, use proper attribution when quoting or paraphrasing. Here are two excellent articles with guidelines for using quotes and paraphrasing — Helen Sedwick and Beth Hill.
    • Generally, we do not quote or paraphrase in fiction. Research is not pasted verbatim into the manuscript. We work facts into our stories via characters and prose. There are exceptions, of course, like using a relevant quotation at the beginning of the novel, or a protagonist’s favorite line in a poem, or the lyrics of a song sung by a villain, all of which require citing sources and if not in the public domain, may involve copyright permissions (see my earlier post on copyright permissions or Adam Mitzner’s post on using song lyrics).
    • Of course, there is leeway for the process of osmosis. We read. We absorb. We file away in our subconscious phrases, scenes, and plot elements that make an impact on us. Later, we reuse them, often thinking we are so brilliant for thinking of it. This type of copying lacks intention and is not something to worry about.
  • Inspiration and similarities
    • If you are inspired by another’s work, there is no need to credit the source. Using someone’s idea, plot element, scene or character but making it your own in a unique and original way with sufficient differences is usually kosher.
    • Same goes for having similar plots or themes with another novel. Every story will have elements that are similar or identical to other stories. As noted above, this is part of the derivative nature of fiction. Plots and themes are constantly reused, reimagined, retold, and rehashed but as with inspiration, in a unique and original way. How many times have we seen a new take on Romeo and Juliet?
  • Internet common sense
    • Just because you found something on the internet, does not mean it is available for use without giving proper credit to the source. Resist the urge to lift words. Plus, those words could have been lifted from someone else.
  • Parody exception
    • Parody imitates an original work but ridicules and exaggerates for comic effect making the new work original and not a copy. Parody in books will normally make note of what is parodied, like National Lampoon’s Doon, a parody of Frank Herbert’s science fiction novel Dune, or Fanny Merkin’s Fifty Shames of Earl Grey, a parody of Fifty Shades of Grey. There is no plagiarism because there is no attempt to pass off the original work as one’s own.
  • Common knowledge
    • Phrases, images, metaphors, snippets of description, and facts that are not unique because they are common knowledge to a large population, or are used in a wide range of unrelated sources, do not require attributions. Unfortunately, there are no clear rules as to what constitutes common knowledge. Stick to the “widely accessible and known” guideline above, and you should avoid accidental plagiarism. But if you are using something from a novel, whether the book is famous or not, and the copied material is likely to be unfamiliar to most people, then play it safe. Use attributions.

What To Do If Your Work Has Been Plagiarized Or Your Copyright Infringed

Plagiarism is an ethical violation with few means of legal recourse; unlike copyright infringement, which provides legal remedies set forth in federal laws. If you suspect your work has been plagiarized, document the offense. Then contact the plagiarizer and ask them to remove the content from print or the internet.

If the plagiarism is not in a self-published book, alert their publisher (and yours) and let them settle the matter. Book contracts have warranty and indemnification clauses allowing a publisher to sue for breach of contract and pull the plagiarized work from publication.

If the plagiarized work is copyright protected, you can contact the retailer and alert them of the infringing work. Retailers have written procedures on claims of copyright infringement. Check their websites for how to proceed. If removal of the infringing work is not enough and you want to sue, consult a lawyer. You will need to register the copyright in the work prior to filing a lawsuit. If you are traditionally published, alert your editor to the copyright infringement and let the publisher’s legal team handle the issue. If you need more information, see my article about how to deal with content theft and Helen Sedwick’s article about do-it-yourself copyright protection.

While it might be tempting to resort to industry shaming, beware of the backlash. Public shaming can land you in the middle of a libel suit.

If all else fails, consult a lawyer, but ask yourself: is the expense worth the outcome? In most cases, you will shell out high legal fees for a low recovery in damages.


Photo Credit:  Britamainia | VisualHunt | CC BY-NC-SA


Legal Disclaimer: The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer, who is also a lawyer, helping other fellow writers learn about publishing law related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. You can read our full Sidebar Saturdays legal disclaimer here.

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