Plagarism, Fiction, and Synthesis

Wed Jan 29 12:30:01 PST 2003

Perhaps I need to clarify my point. I thought I was clear, but I have been 
accused on more than one occasion of not being so, therefore, it is probably 
best I respond to this. So, here's your legal lesson for the day. I will 
start by referring you back to the original discussion that was regarding 
two separate works in progress by two separate authors one using the others 
work in order to obtain information (or at least that is how I understood 

>And let us note the difference between fiction and non-fiction.
>Taking twenty others peoples work and using it to get your facts
>right in a work of mostly-unrelated fiction (such as the Vlad
>stories) is perfectly legit.

Basing your work on other peoples work that is in progress, of people who 
you are in direct competition with and not working with, who have not 
published their own works, but are rather working at the same time as you in 
order to come to the same if not similar conclusions to what you are trying 
to achieve, in order to further your own goals, and perhaps speed up the 
timing of what it would take you to discover and disavow, is not perfectly 
legit. It is infringement of intellectual property rights and is industrial 
espionage (amongst other things that to date I have not studied yet and so 
it would be very lacking, wrong and unethical of me to state what I believe 
they are or not). This holds for the non-fiction line of work, in fiction 
you get into infringement of a) copyright (which I will not go into here 
because we've already had this discussion in the past and though I didn't 
agree with several people's opinions here, certain people were very adamant 
about what constituted copyright infringement, but let me just say you do 
not have to have an actual copyright on file with the American Copyright 
service in order to be considered the possessor and/or creator of 
intellectual property, it is just a little harder to prove in court (if it 
comes down to that) that you were the creator. Furthermore, there are other 
ways to prove whether a copyright did in fact and in law exist, these would 
be taken into discretion by the court if it ever came down to it...want to 
protect yourself, give a copy of what you write to 10 of your closest most 
trusted friends, I am told distribution is the second best way to protect 
yourself) and b) plagiarism.

The definition of industrial espionage is a little hard to identify, but 
let's give it a try. For my analysis I'll use Blacks Dictionary of Law, 
Sixth Edition; West Publishing Co., St. Paul, MN (and please don't anyone go 
and try and find a "better" definition in their regular dictionaries, Blacks 
is the general accepted dictionary in the legal profession, so much so that 
you are required to buy it when you start school, so generally anything from 
it is *the* accepted definition):

Industry is defined as follows:

"A department or branch of art, occupation or business conducted as a means 
of livelihood or for profit; especially, one which employs much labor and 
capital and is a distinct branch of trade...it may be defined in terms of 
end uses for which various people compete; it may also denote an aggregate 
of enterprises employing similar production and marketing facilities and 
producing products having markedly similar characteristics" -- Note: Art is 
mentioned in this definition, and both literature and science is a form of 

Espionage is defined as follows:

"Spying or having reference to the crime of "gathering , transmitting, or 
losing" information respecting national defense with intent or reason to 
believe that the information is to be used to the injury of the United 
States or to the advantage of any foreign nation" (a little quarky to be 
using with industry, but our law recognizes that this definition may apply 
to industry too)

Put the two together and you get "industrial espionage" which is basically 
what I described in my second paragraph above, but also has the nice short 
sweet definition of:

"Spying on ones competitors to gain a competitive advantage"

The elements of what one will be held liable for if they acquire material by 
unfair means are as follows:

1) If discovery of the material was by improper means.
2) If there was a breach of confidence in obtaining the material (i.e.
   you steal a friends works of which they confided in you)
3) If the information was obtained through a third person and that
   person knew or should have known (RPT -- "reasonable person test")
   that this information was not to be available to "anyone" (was
   secret). (note this holds true even if the party using the
   information DOES NOT know that the information is secret)
4) One knew or should have known (RPT) that the information was not
   available to anyone and that disclosure of the information to them
   was a mistake. (just because someone let's something "slip" doesn't
   mean you can use it).
5) Information was acquired by theft, bribe, misrepresentation, breach
   of duty of contract, and/or espionage.

Plagiarism is defined as follows:

"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. If the material is protected by 
copyright, such act may constitute an offense of copyright infringement.

To be liable for plagiarism it is not necessary to exactly duplicate 
another's literary work, it being sufficient if unfair use of such work is 
made by lifting of substantial portion thereof, but even an exact 
counterpart of another's work does not constitute plagiarism if such 
counterpart was arrived at independently [in other words, if you 
"accidently" create the exact same thing as another person without having 
any knowledge of their work]."

The elements of when one will be held liable for plagiarism are:
1) Plaintiff owns property
2) Defendant copied work (this may be direct or imputed)
3) Improper appropriation (taking ones works and actually claiming them
   your own -- sort of a conversion -- i.e. improper notice/citation)

And the exception to these elements ("fair use doctrine") are as follows:

1) Character and purpose of work (for example news journalists can use
   works without citation, non-profit organizations will not be held
   liable for their breach of duty)

2) Nature of work (parody: you can paradise anything without being
   held liable, so long as it is obvious parody and is not "fan
   fiction" or stealing -- though I don't know if most people would
   consider it parody (and I believe it to be public domain, so it
   really doesn't apply), I think TRiH is probably a good example of

3) Amount of what is used and how substantially it is used (if it is
   not the "core" of your work and/or your work would stand on its own
   merits without usage of the non-cited work (non-material breach),
   you generally will not be held liable -- always use generally
   because there are times where you still may be liable).

4) Effect of market (will your work cause a decline in the
   marketability of the other work? is your work marketable (will it
   hit an audience at all, or will it just remain in your home for you
   and your friends to look at)?

In other words, as stated above if you use anothers works that are not 
freely available, without giving them the credit they deserve, you are 
infringing on their intellectual property rights.

There, I think I just IRC'd (contrary to IRAC'ing it) his thing, though I 
didn't A because there isn't anything to analyze.

>What separates
>plagarism from actual research is how well you synthesize something
>new from the previous stuff.  As an example, a book on historical
>geography might integrate well with the semi-legendary battle of
>Thermopylae of if it illustrates that a gap which is now nearly
>impassible was much wider 3000 years ago -- or vice-versa.  This
>has big implicatations either way, and synthesizing from those facts
>is good research.  Not synthesizing is probably plagarism.

This is beside the point I was trying to make, if I recall correctly the 
post I was responding to was regarding basing ones conclusions on other 
authors "works in progress." Furthermore, I think Rachel corrected my 
opinion very nicely in explaining that what the author of the original 
message was speaking about was other authors who contributed "directly" to a 
work, knowing they were contributing to "that" work but did not get credit 
because they were "minor" authors. She said this was the common tradition in 
the scientific community. This made perfect sense to me, and therefore I had 
no rebuttal.

However, if you do want to talk about already published works, as an author 
of fiction and/or nonfiction works alike, unless you are accessing public 
domain, you had better either a) cite what you are going to use or b) create 
something totally original and unique (no matter how well you "synthesize 
it"). This does not mean you can't "use" other people's works, it's just 
saying you have to create something absolutely and totally original, unique, 
and that will stand on it's own merits, or cite your sources. In some cases, 
you cannot use or cite unless you get authority and approval to use another 
authors works in order to create your own (an exception here is scholastic 
works, i.e. term papers, where approval is not necessary but citing still 
is). Basically the rule in these circumstances is that no sampling is 
allowed without the consent of the author; that's when law suits occur, and 
the courts get involved and you waste a lot of the courts time and taken it 
away from people who might actually be deserving of that time in the system. 
That is, unless the author doesn't care or doesn't have the money to fight 
you, etc.

>There was a recent novelization (I forget title and author) about
>that battle and (more importantly) about Spartan society.  The
>author isn't a particularly good writer, but he brought Spartan
>society to life much better than all the non-fiction I'd read of
>the era.  When a better writer tries this sort of thing, you get
>excellent books like McCulloughs "First Man In Rome" and "The Grass
>Crown", or Mary Stewarts Arthurian tales.  I doubt Stewart of
>McCullough have contributed anthing new to our knowledge of the
>Authurian legends or late republican Rome, but anyone who calls it
>plagarism (and I'm not saying H. T. is) is simply off base.

I am sure it must have been a completely unique work, that as you said 
"brought Spartan society to life much better than all the 
non-fiction...[you] read of the era", and perhaps he used works that are no 
longer protected. I haven't read it so I don't know. And actually, I've read 
quite a few things in non-fiction (and some fiction, though I think it 
occurs less because it is easier to be "original" in this  field) that are 
published and are just blatantly plagiarism. I have a feeling either the 
authors of these plagiarized works know and don't care or care but don't 
want the battle of fighting it, intellectual property lawyers do not provide 
contingent fee agreements.... this means you pay for every hour they work 
and at $250 an hour this gets expensive.

P.S. Again, as I responded Mr. Dyer-Bennet, my usage of literature in my 
last example was simply to write a little on topic (I could have used other 
non-fiction work just as well). This is after all not a forum for legal 
debate, but should be/is dedicated to a certain author who probably doesn't 
care what our opinions on plagiarism are so long as we don't plagiarize him. 
I think we have just found a very good, diverse, and for the most part 
intellectual group here that has grown to talk about other things beside 
this particular authors works, and this is/could be a good thing...I 
certainly have liked the conversations to date, and the ones I don't I 

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