Stop, Thief! What Exactly Is Plagiarism and How Can I Defend My Work?

If life were fair, Wikipedia would be awarded thousands of high school diplomas, hundreds of B.A.s, and maybe even a doctorate or two.Your high school English teacher called it “plagiarism”—and you may have committed a bit of it for free—but now you’re getting paid to write (theoretically), and you’re starting to get that little pang of worry every time you wonder,“Can I quote this?”

So what exactly is plagiarism, and how can you avoid it?

Copyright Infringement vs. Plagiarism

“Plagiarism” isn’t the name of a crime per se; in other words, you’ll never hear a judge say “The Defendant is charged with Plagiarism in the second degree.”  Rather, people who attempt to pass off the work of others as their own can be charged in civil and criminal courts with torts and offenses including copyright infringement, trademark infringement, fraud and breach of contract.

An excellent example is the Connecticut case of Coster v. Duquette (990 A. 2d 362 [2010]), in which Central Connecticut State University student Cristina Duquette accused a classmate, Matthew Coster, of turning in her term paper as his own.  After Coster was expelled from CCSU he sued Duquette in civil court, and won. Rather than calling it a tort of plagiarism, the court said Coster had submitted evidence of “conversion and civil theft”; conversion being legalese for “you wrongfully took something that belonged to me and now you owe me its full value.”

What if there was no registered copyright?

Watch out just the same!

The United States Copyright Office explains that copyright protections automatically attach whenever an author (i) creates an original work; (ii) which is “fixed” in a tangible medium, including works of graphic art, sound, writing, video, and more. This means that you could get sued for copyright infringement even if the author never registered the work with the USCO In other words, don’t feel free to cut and paste willy-nilly just because you don’t see a “©”.  If you’re the author, a proper USCO registration is highly recommended, as it will give you advantages in defending your creation against potential infringers.

What about Fair Use?

Thankfully, the law recognizes that we simply have to talk about intellectual works, even if we didn’t create them ourselves.  The so-called “Fair Use Doctrine” set forth in Title 17 Section 107 of the United States Code provides that reproduction of a particular work may be considered “fair” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. While there is no bright-line boundary between riposte and rip-off, one of the first questions a court will ask is whether your reproduction is likely to result in the author losing money.

What if I’m the one being infringed?

Here’s the bad news: If someone steals your work, you probably shouldn’t hold your breath until a federal S.W.A.T. team comes and kicks down the offender’s door.  While the USCO states that in some cases a U.S. Attorney “may” initiate a criminal investigation your overstretched federal government largely leaves the copyright holder to fend for herself, giving her leave to fight violators at her own expense in civil court.  That said, a reputation for a dishonest product can be career-ending for anyone who writes for a living. The examples are everywhere.

The plain truth is: You’ll be a whole lot safer if you simply watch that little ethical barometer in your gut.  If you’re tempted to submit something that isn’t all it seems, this attorney says shut the laptop and take a break before your career ends up in a million little pieces.

Frank Morgan is a practicing New York attorney specializing in tort litigation, intellectual property, and contract matters.