Stearns - 'Copy Wrong Plagiarism, Process, Property, and The Law'

California Law Review, Inc.
Copy Wrong: Plagiarism, Process, Property, and the Law

Author(s): Laurie Stearns
Source: California Law Review, Vol. 80, No. 2 (Mar., 1992), pp. 513-553
Published by: California Law Review, Inc.
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Copy Wrong: Plagiarism, Process,

Property, and the Law
LaurieStearnst
Wrongfulcopyingin literatureor academiais calledplagiarismby
writersand scholarsand copyrightinfringementby lawyersand judges.
Althoughsuperficiallysimilar, the conceptsof plagiarismand infringement arefundamentallydifferentin the significancetheyattach to such
characteristics
of the offenseas amountof copying,attributionof authorship,and intent. ThisCommentarguesthat the differentunderstandings
of bothcopyingand wrongfulness
implicitin the twoconceptsrevealdifferent perspectives
on creativity:plagiarismemphasizesthe creativeprocess,
whileinfringementemphasizesthe creativeresult. Thelegal emphasison
resulthas manifesteditself in the law'schoiceof the intellectual-property
frameworkfor the resolutionof literarydisputes.Theauthorsuggeststhat
thepropertymetaphoris at bestincompleteand at worstmisleadingwhen
appliedto words.She recommendsa supplementary
legal metaphor:the
creativecontract. Contractprinciplesprovidea frameworkwithwhichto
analyzethecreativeprocessas a transactionbetweencreatorand audience,
enablingthe law to recognizethatcreativityis an ongoingact of communicationamongpeople--as is the law itself
A few yearsago, while workingas an editor,I was puttingthe finishing touches on a forthcomingbook about an event from fifty years
before,which had previouslybeen chronicledby participants,observers,
and scholars. The new book was nothingto get excitedabout,but it was
well organizedand comprehensive;
it offereda new interpretationof the
event;and its author,who had writtenseveralbooksbefore,had apparently done a competentjob.
One day the mass-transportation
system broke down and I was
unableto reachmy office. InsteadI went to my local libraryto verify
some historicalinformationfor the book. As I browsedthroughone of
the otherbooks on the same subjectin the library'scollection,scanning
the pagesfor namesand dates,a passagecaughtmy eye-a passagethat
was strangely,even disturbingly,familiar. The same passageappeared
f B.A. 1975, Lawrence University; J.D. candidate 1992, Boalt Hall School of Law,
University of California, Berkeley.
I am grateful to Mike Flick for his guidance and encouragement throughout the writing of this
Comment, as well as for supplying its most apt title (the ponderous subtitle is my own fault); to
Robin Wechkin for her suggestions and support; and to the staff of the California Law Review.
513

514
LAWREVIEW
CALIFORNIA
[Vol. 80:513
almost word for word in the manuscriptI had been editing. With
increasingagitationI pagedthroughthe remainingbooks. In the end, I
identifiedfivepassagesthat my authorappearedto haveliftedfromthree
differentsources.
The next day, back at my office,I told the head of the publishing
companyabout my discovery. Dismayedand clearlyreluctantto take
the matterup with the author,he askedme to rewritethe passagesI had
found. I declinedvehementlyandreturnedto my deskto puzzleoverthe
questionscrowdingmy mind: How could an author-an experienced
author-have done such a thing? What would have happenedif the
trains had been runningthe day before and I had never gone to the
library?WeretheremorecopiedpassagesI had not found? Why had I
refusedto rewritethe offendingpassagesmyself?And why was I so outragedat what I had discovered?
The questionsI was askingthat day were aboutliteraryethics, not
about the law. Later, the publisher'slawyers calmly accepted the
author'sassurancesthat the copying,whichhe ascribedto a simpleflaw
in his notetakingsystem,extendedno furtherthan the materialalready
uncovered. Indeed,the lawyersseemedrelievedthat the problemwas
merelyplagiarismratherthan, say, libel.
People commonlythink of plagiarism-the intentionalappropriation of the creativeoutput or scholarshipof anotherwithout attribution'-as being "againstthe law." But the law and plagiarismintersect
only imperfectly.Plagiarismis not a legal term,and thoughan instance
of plagiarismmight seem to be the quintessentialact of wrongfulcopying, it does not necessarilyconstitutea violationof copyrightlaw.
Plagiarismdwellsat the meetingplace of two greathumanendeavors: literatureand the law. It is the sourceof legaland criticaldisputes,
an exampleof "creativitygonebad." Boththe law andthe waywe define
creativitycan shapethe way we understandplagiarism,andboththe way
we understandplagiarismand the way we definecreativitycan shapethe
law.
In this CommentI discussplagiarismin the settingof the written
word. I have chosen to do so, drawingmy examplesfrom the literary
and academicworlds, so as not to become entangledin constitutional
definitionsof an "author"or a "writing,"2
or in statutorydefinitionsof a
1. More complex definitions will be introduced infra notes 10-11 and accompanying text.
There is no legal definition of plagiarism, and I do not propose one in this Comment, agreeing with
Schlegel that "[t]rue definitions can't be made at will, but have to come of themselves." FRIEDRICH
Athenaeum Fragments ? 82, in PHILOSOPHICAL
FRAGMENTS
18, 27-28 (Peter Firchow
SCHLEGEL,
trans., University of Minn. Press 1991).
2. The authority for American copyright law comes from the United States Constitution:
"The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing

COPYWRONG
1992]
515
"workof authorship,"3
that would obscurethe primaryquestion:What
is the role of copyrightlaw in protectingcreativityand scholarship?
My intentionis not to simplifythe relationshipbetweenplagiarism
and the law, but ratherto exploreits complexity. My approachis to
providean overviewof plagiarismin literature,to examineand analyze
the reasonsfor the differencebetweenplagiarismand copyrightinfringement, and to explorepossibledirectionsfor the futuredevelopmentof
law. PartI surveysphilosophical,literary,and psyintellectual-property
views
of
the
creativeprocess,and of plagiarismas the failure
chological
of this process. Part II looks at copyrightlaw's approachto plagiarism
and concludesthat the law divergesfrom the popularunderstandingof
plagiarismby emphasizingresultoverprocess. PartIII tracesthis divergence to the propertymetaphorthat the law has used to analyzesuch
problemsand offersa supplementarymetaphor:that of contract. Part
IV suggestswaysin whichthe humanintellectand humancreativitycan
protectand be protectedby the creativeprocessof the law itself.
I
PLAGIARISM AND THE CREATIVE PROCESS
Thepoet'seye, in a fine frenzyrolling,

Dothglancefrom heavento earth,from earthto heaven;
And as imaginationbodiesforth
Theforms of thingsunknown,thepoet'spen
Turnsthemto shapes,and givesto airy nothing
A local habitationand a name.
-Shakespeare,A MidsummerNight'sDream4
In their ongoing effort to set themselvesapart from other living

creatures,human beings have singled out the creative process as a
uniquelyhumancharacteristic.5Whetherviewedas a spiritualtraitor a
physiologicalone,6 creativity-in literature,the visual arts, music, philosophy,or science-can inspireadmirationand awe. The creativeprocess is one of change,both for the creators,who whiletransformingtheir
raw materialsinto new, finishedworksfindthemselvestransformed,and
for limited Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries .... " U.S. CONST.art. I, ? 8, cl. 8.
3. The current copyright statute limits its protection to the stated subject matter: "Copyright
protection subsists . . . in original works of authorship ... " 17 U.S.C. ? 102(a) (1988).
4. WILLIAMSHAKESPEARE,
A Midsummer Night's Dream act 5, sc. 1, 11.12-17, in WILLIAM
SHAKESPEARE:
THE COMPLETE
WORKS169 (Alfred Harbage ed., 1969). This portrayal of poetry
as imagination expressed corresponds to the "idea/expression dichotomy" of copyright law. See
infra text accompanying notes 73-78.
5.
See, e.g., SILVANO ARIETI, CREATIVITY:THE MAGIC SYNTHESIS4 (1976) (creativity is "a
prerogative of man").
6.
See RICHARD WINCOR, LITERARY PROPERTY8-9 (1967).

516
LAWREVIEW
CALIFORNIA
[Vol. 80:513
for theiraudiences,who in seekingknowledgeand enlightenmentassimilate and transformthose worksas part of their own creativeprocess.
Creation,of course,is not an absolute. To claim to have createda
work,one neednot havemadesomethingfromnothing. In the wordsof
MaryShelley: "Invention,it mustbe humblyadmitted,does not consist
in creating out of void, but out of chaos .
. ."7 Whether creation is
perhapsthe act of assemblingsomethingthatdid not formerlyexist,or of

revealingsomethingalreadythere, or even of hiding somethingpreviously disclosed,it is in any case an act situatedin time, taking into
accountwhat has gone before.8
Somethinkershaveconceivedof artas essentiallyimitative.9Stories
that depict common experiencesor illuminatelife's dilemmasare told
and retoldin myth,poetry,anddrama. Creatorsdrawuponthe worksof
their predecessorsand offerup their own worksfor the use and enjoyment of others. Given this interdependence
of humancreativeefforts,
requirementsof completeoriginalityor noveltybecomedifficult,if not
impossible,to impose in evaluatingthe success or value of a literary
work. The idea of plagiarismis thus somethingof a paradox.Why condemnan authorfor borrowingfromanotherif suchborrowingis inevitable and evenfundamentalto the creativeprocess?The answerlies in the
kind of borrowingan authordoes. The essenceof the modernunderstandingof plagiarismis failureof processin boththe purelyliteraryand
the scholarlysettings.
Plagiarism means intentionallytaking the literary property of
anotherwithout attributionand passing it off as one's own,1' having
7. MARYSHELLEY,
FRANKENSTEIN
xxiv (BantamBooks 1981) (1818). She continued:
"[T]hematerialsmust,in the firstplace,be afforded:it can give formto dark,shapelesssubstances
but cannotbringinto beingthe substanceitself.... Inventionconsistsin the capacityof seizingon
the capabilitiesof the subjectand in the powerof mouldingand fashioningideassuggestedby it."
Id.
8. Sir IsaacNewtonacknowledged
his predecessorswith the statementthat his remarkable
achievements
werepossiblebecausehe wasableto stand"'on ye sholdersof giants.'" ROBERT
K.
MERTON, ON THE SHOULDERSOF GIANTS 31 (1965) (quotingletterfromIsaacNewtonto Robert
Hooke (Feb. 5, 1675/1676))(attemptingto trace the origin of the title phraseand findingits
permutationswidely distributedthroughoutthe literatureof the time). Newton'soften-quoted
formulationis abbreviated
in legalwritingon intellectual-property
mattersas "OTSOG."See, e.g.,
LotusDev. Corp.v. PaperbackSoftwareInt'l, 740 F. Supp.37, 77 (D. Mass. 1990).
9. See Aristotle,ThePoetics,in XXIII ARISTOTLE
4, 57 (W. HamiltonFyfe trans.,Harvard
Univ. Press:LoebClassicalLibrary1932)(formof art is an imitationof reality);Longinus,On the
Sublime,in XXIII ARISTOTLE
supraat 122, 167 (recommending
"[z]ealousimitationof the great
historiansand poetsof the past"because"fromthe naturalgeniusof thoseold writersthereflows
into the heartsof theiradmirersas it werean emanationfromthe mouthof holiness").
10. See, e.g., BLACK'S
1150 (6th ed. 1990) (plagiarismis "[t]heact of
LAWDICTIONARY
the literarycompositionof another,or partsor passagesof his writings,or the ideasor
appropriating
languageof the same,and passingthemoff as the productof one'sown mind");11 THEOXFORD
ENGLISH
DICTIONARY
947 (2d ed. 1989)(plagiarismis "thewrongfulappropriation
or purloining,
and publicationas one'sown,of the ideas,or the expressionof the ideas(literary,artistic,musical,
THIRDNEW INTERNATIONAL
DICTIONARY
OF THE
mechanical, etc.) of another"); WEBSTER'S

COPYWRONG
1992]
517
failedto add anythingof valueto the copiedmaterialand havingreaped

from its use an unearnedbenefit." In a sense, plagiarism(presenting
another'swork as one's own) is the inverseof forgery(presentingone's
own work as another's). The word "plagiarize"comes from the Latin
plagiarius,originallymeaninga kidnapperand then used to referto a
a literaryworkdoes not preliterarythief.12 The imageof "kidnapping"
fit
with
which
involves
more
thanjust takingthe words
cisely
plagiarism,
of another;it also involvesputtingthose words to work for the plagiarist'sown ends. The imageis more nearlythat of abductioninto servitude, and in fact plagiariusmeant both a kidnapperin generaland a
kidnapperof a slave in particular."3
The word'sancientoriginindicatesthat borrowingin literatureand
scholarshiphas concernedauthors for centuries. The reuse of plots,
themes,settings,and phrasingin literaturegrew initiallyout of an oral
tradition founded on repetitionand elaboration. From the classical
period,worksknownto echo their predecessorsincludethose of Plato,
Homer,Sophocles,Virgil,Terence,and Horace;from the MiddleAges,
Beowulf and the Song of Roland; and from the Renaissance,Dante's
Divine Comedy, Boccaccio's Decameron, and Chaucer's Canterbury
Tales. 4 Writers of the seventeenth and eighteenth centuries-
Shakespeare,Ben Jonson,AndrewMarvell,and AlexanderPope among

them-were copious and enthusiasticborrowers,imitating language,
forms,and sourcesfoundin classicalwritings,myths,and legends."
At the same time, "faulty"borrowings-"the secret,the perverse,
the servile,the superficial"-weredenounced.'6The parametersof the
moderndefinitionof plagiarismemergedduringthe late eighteenthcentury out of the Romanticemphasison individualismand the conviction
that writersare obligatedto makeuniquecontributionsto any material
ENGLISH
LANGUAGE
UNABRIDGED
1728(1961)(to plagiarizeis "to stealandpassoff as one'sown
(theideasor wordsof another),"to "use(a createdproduction)withoutcreditingthe source,"or "to
commitliterarytheft,"whichis to "presentas newandoriginalan ideaor productderivedfroman
ANATOMY
OFPLAGIARISM
51-62
existingsource");see also K.R. ST.ONGE,THEMELANCHOLY
(1988)(definitionsfromsuchsourcesas the ModernLanguageAssociation,languagetextbooks,and
schoolcatalogs).
11. "Plagiarismis an intentionalverbalfraudcommittedby the psychologicallycompetent
that consists of copying significantand substantialuncreditedwritten materialsfor unearned
of the materialscopied."ST.ONGE,supranote 10, at
advantageswith no significantenhancement
101.
12. 11 THEOXFORD
ENGLISH
DICTIONARY,
supranote 10, at 947.
13. Id.
14.
See ALEXANDER LINDEY, PLAGIARISMAND ORIGINALITY 62-72 (1952).
15. Id. at 72-84. See generally HAROLDO. WHITE,PLAGIARISM

AND IMITATION
DURING
THE ENGLISH RENAISSANCE (1935).
16. WHITE,
STOLEN
WORDS:
FORAYS
INTO
MALLON,
supranote 15, at 15;see also THOMAS
THEORIGINSANDRAVAGESOFPLAGIARISM
6-8 (1989) (describing plagiarism controversies of the
seventeenthcenturysurroundingDescartes,Leibniz,Wren,Hooke,Newton,Pascal,and others).
For moreaboutNewton,see infra note 70.

518
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[Vol. 80:513
they borrow,turningit into somethingthat is their own.17 The only

legitimateborrowing,therefore,is that whichproceedsto transformthe
originalmaterialby meansof the borrower'screativeprocess.18
of arrangeIn contemporaryliteraturethe forbiddenappropriation
ments of words is not the same as the allowableborrowingof themes,
structures,observations,or life experiences,and modernwritersobserve
a code of behaviorthat differentiatesthe acceptablefrom the unacceptablein this respect. F. ScottFitzgerald,for example,was well knownfor
usingmaterialfromhis own life and the lives of those aroundhim in his
novels and shortstories.19He freelyacknowledgedthis practice,joking
to his friend Robert C. Kerr that a characterto be modeledon him
would be named Robert B. Kerr "to conceal his identity."20 Yet
Fitzgeraldsenta contriteletterto WillaCatherto explain"aninstanceof
apparentplagiarism"upon findingthat he had includedin The Great
Gatsbya descriptivepassagewith an "essentialsimilarity"to a passage
from Cather'searlierA LostLady,21 and he condemnedJohn Steinbeck
for being "a rathercagey cribber."22
In the academicworld, plagiarismarises most often as the unattributeduse of materialthat,wereit properlycredited,wouldnot be considered plagiaristicat all. In forms of writing in which citation to
supportingauthoritiesis customary,the scholarly plagiarist'soffense
consistsless in omittingto transformthe borrowedmaterialthanin omitting to identifyits source. Academiatakesplagiarismseriously:"Plagiarism is an academiccapital offense,punishableby academicdeath for
studentor faculty."23 Academicauthoritiesrefercases of plagiarismto
17. See MALLON,supra note 16, at 24-25.
18. The obligation of the author to make an original contribution parallels Locke's view of the
origin of property: "Whatsoever then he removes out of the State that Nature hath provided, and
left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby
makes it his Property. " JOHN LOCKE, TWO TREATISES OF GOVERNMENT 306 (Peter Laslett ed.,
Cambridge Univ. Press 2d ed. 1967) (4th ed. 1713).

19. For example, the protagonist in Fitzgerald's first book, This Side of Paradise, was a young
man much like Fitzgerald himself; a central character in Tender Is the Night was a woman who
suffered from psychological problems similar to those of his wife, Zelda; and The Last Tycoon was
inspired by the productive life and early death of filmmaker Irving Thalberg, for whom Fitzgerald
worked briefly. See MATTHEW J. BRUCCOLI, SOME SORT OF EPIC GRANDEUR: THE LIFE OF F.
30-31, 259, 335, 466 (1981).

SCOTTFITZGERALD
20.
Letter from F. Scott Fitzgerald to Robert Kerr (June 1924), in CORRESPONDENCEOF F.
143 (Matthew J. Bruccoli & Margaret M. Duggan eds., 1980).

SCOTTFITZGERALD
21. Letter from F. Scott Fitzgerald to Willa Cather (late Mar./early Apr. 1925), in
CORRESPONDENCEOF F. SCOTT FITZGERALD, supra note 20, at 155-56.
22. Letter from F. Scott Fitzgerald to Edmund Wilson (Nov. 25, 1940), in CORRESPONDENCE
OF F. SCOTTFITZGERALD,
supra note 20, at 612 (accusing Steinbeck of borrowing from, among
others, Frank Norris, Upton Sinclair, and D.H. Lawrence: "Most of us begin as imitators but it is
something else for a man of his years and reputation to steal a whole scene as he did in 'Mice and
Men.' ").
23.
ST. ONGE,supra note 10, at 39; see also Morris Freedman, PlagiarismAmong Professorsor
Students Should Not Be Excused or Treated Gingerly, CHRON. HIGHER EDUC., Feb. 10, 1988, at

1992]
COPYWRONG
519
the disciplinarybodies of eitherthe school24or the appropriateprofessional organization.25

Peopledespiseplagiarismnot becauseit resultsin inferiorworksby drawingfrom othersplagiaristsmay producebetterworksthan they
couldby themselves-but becauseit is a formof cheatingthat allowsthe
plagiaristan unearnedbenefit. This benefitcould be eithertangible,as
when the work is of commercialvalue or fulfillsa requirementfor an
academicdegreeor tenure,or intangible,as when it adds to the plagiarist'spersonalor professionalreputation.The form that the plagiarist's
cheatingtakes--claimingcreditfor someoneelse'sachievements-is particularly abhorrent.26Individualswho do not hesitate to photocopy
would never
copyrightedbooks or videotapecopyrightedbroadcasts27
dreamof representingthemselvesas the authorsof the books or tapes.
Plagiaristslive under the constantthreat of discovery. Every few
years,accusationsof plagiarismby famouspeople(in 1991,in a speech
in
by the dean of the school of communicationsat BostonUniversity;28
in
Dr.
the
student
of
in
Martin
Luther
1990,
writings
King, Jr.;29 1987,
in the campaignspeechesof SenatorJosephBiden30)serveas reminders
of the degreeof publicdisapprovalattachingto the offense. Oncediscovered, the plagiaristwill fall undersuspicionnot only of furtherplagia-
A48 (consequences of academic plagiarism). See generally Ralph D. Mawdsley, Plagiarism

Problems in Higher Education, 13 J.C. & U.L. 65 (1986) (institutional consequences of student
plagiarism); Patsy W. Thomley, In Search of a Plagiarism Policy, 16 N. KY. L. REV. 501 (1989)
(academic plagiarismpolicies); Debbie Papay-Carder,Comment, Plagiarism in Legal Scholarship, 15
U. TOL.L. REV. 233 (1983) (plagiarism in the law-school setting, including a survey of law-school
deans).
24. Cases of academic plagiarism that reach the courts often state claims of due-process
violations arising from disciplinary proceedings of state educational institutions. See, e.g., Newman
v. Massachusetts, 884 F.2d 19, 22 (1st Cir. 1989), cert. denied, 493 U.S. 1078 (1990); Easley v.
University of Mich. Bd. of Regents, 853 F.2d 1351, 1354 (6th Cir. 1988); Agarwal v. Regents of
Univ. of Minn., 788 F.2d 504, 507-08 (8th Cir. 1986); Hill v. Trustees of Ind. Univ., 537 F.2d 248,
252 (7th Cir. 1976).
25. See, e.g., Ezra Bowen, Stormy Weatherin Academe, TIME,Jan. 14, 1985, at 59 (American
Historical Association's reluctance to investigate charges that a historian had used altered quotes
and improper attributions in a book manuscript).
26. "Plagiarism proclaims no majestic flaw of character but a trait, pathetic, that makes you
turn aside in embarrassment. It belongs to the same run-down neighborhood as obscene phone calls
or shoplifting." Lance Morrow, Kidnapping the Brainchildren, TIME,Dec. 3, 1990, at 126.
27. Cf Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of
Consistency,Consent, and Encouragement Theory, 41 STAN.L. REV. 1343, 1345-46 (1989) (people
resent the intrusion of copyright law into what they perceive as private activities).
28. Dean Resigns in Boston U. Plagiarism Case, S.F. CHRON.,July 13, 1991, at A7.
29. Anthony DePalma, Plagiarism Seen by Scholars in King's Ph.D. Dissertation, N.Y. TIMES,
Nov. 10, 1990, at 1.
30. Maureen Dowd, Biden's Debate Finale: An Echofrom Abroad, N.Y. TIMES,Sept. 12, 1987,
at 1.

520
LAWREVIEW
CALIFORNIA
[Vol. 80:513
rism31but also of otherethicalbreaches.32Evena falseaccusationstains

an author'sreputation,a stainthe authormayneverbe ableto remove.33
With so much at risk, why do people plagiarize?The most pragmatic varietyof plagiarismcomes in responseto the pressuresof academic or professionaldeadlines. Some student plagiarismhas been
blamedon the failureof the educationalsystemto teachcorrecthabitsof
and teachersdeplorethe way that relianceon plagiarism
referencing,34
can retard a student'screativedevelopment.35Less explicableis the
egregiousvarietyof plagiarismthat occurs in a more purelyvoluntary
endeavor-for example,in a firstnovel.36Commentatorshavetheorized
that plagiaristsin such situationswish to be caughtand punishedpublicly37and have likenedthe psychologyof plagiarismto the psychology
of kleptomania.38
As popularlyunderstood,then,plagiarismis a failureof the creative
process,not a flawin its result. Althoughimitationis an inevitablecomponentof creation,plagiaristspass beyondthe boundariesof acceptable
imitationby copyingfrom the work of others withoutimprovingupon
the copiedmaterialor fullyassimilatingit into theirown work;by failing
to attributethe copiedmaterialto its actualauthor;and by intendingto
deceiveothersaboutits origin. Society'sdisapprovalis directedtoward
the plagiaristand the processof plagiarism,not towardthe result: if Dr.
Frankensteinwereviewedas a plagiaristwho stitchedtogethera creature
made of parts stolen from other entities,it would be Dr. Frankenstein
whomsocietycondemned,not the monsterhe animated.Moreover,society disapprovesof the benefitsthat can accrue to plagiaristsif their
deceptionis successful-if, for example,Dr. Frankensteinwereto claim
31.
11 THE OXFORD ENGLISH DICTIONARY, supra note 10, at 947 (" 'If an author is once
detected in borrowing, he will be suspected of plagiarism ever after.'" (quoting WILLIAM

HAZLITT,
LECTURES CHIEFLY ON THE DRAMATIC LITERATURE OF THE AGE OF ELIZABETH 257 (1820))).
32. See Peter Shaw, Plagiary, 51 AM. SCHOLAR

325, 325-26 (1982) (giving the example of a
research scientist who was only reprimanded for plagiarism but later fired when his superiors
discovered that he had falsified data in the same article).
33. See, e.g., Perri Klass, TurningMy WordsAgainst Me, N.Y. TIMES,Apr. 5, 1987, ? 7 (Book
Review), at 1 (Klass' experience with an anonymous enemy who planted false accusations of
plagiarism), cited in MALLON,supra note 16, at 132-35 (Klass' very attempt to refute charges of
plagiarism might cause her to be incorrectly remembered as a plagiarist).
34. Joyce A. Carroll, Plagiarism: The Unfun Game, ENG.J., Sept. 1982, at 92, 93-94; see also
Augustus M. Kolich, Plagiarism: The Worm of Reason, 45 C. ENG. 141, 147 (1983) (continuum
between "cut-and-paste"writing and genuine plagiarism).
35. See, e.g., A.E. Malloch, A Dialogue on Plagiarism, 38 C. ENG. 165 (1976) (English
teachers' experiences with students' plagiarism).
36. See MALLON,supra note 16, at 89-143 (events surrounding the revelation in 1980 that
Martin Amis had found fifty-three instances in which language from his novel The Rachel Papers
had later appeared in Jacob Epstein's first novel Wild Oats).
37. Elizabeth Peer, Why WritersPlagiarize, NEWSWEEK,Nov. 3, 1980, at 62.
38.
Shaw, supra note 32, at 332. See generally
SISSELA BOK, LYING: MORAL CHOICE IN
PUBLICANDPRIVATELIFE(1978) (choices people make about whether to tell the truth or tell lies).

1992]
COPYWRONG
521
a prestigiousawardfor bringinga creatureinto beingwithoutacknowledging that he had made the creaturefrom preexistingcomponents.
Suchsocietaldisapprovalseeksan outletin the law. But the law, with its
attention focused on differentconcerns, provides only an imperfect
meansof addressingthe problemof plagiarism.
II
PLAGIARISM AND COPYRIGHT INFRINGEMENT
For poets, law makes no provision....
-Jonathan Swift,On Poetry:a Rhapsody39
Evenwithoutbeingableto articulatea precisedefinition,manypeople findit easy to recognizeplagiarism-like pornography,they know it

when they see it.4 Peoplewho inquiredaboutthe subjectof this Comment while it was being writtenwere easily able to understandwhat it
was going to be about,and manyofferedsuch ripostesas "Didn'tsomeone else write about that?"or "Whydon't you just copy it?" Another
writer on plagiarismwho had similar experiences41concluded that
"almostall of us-writers, common readers,academics-prefergossip
aboutplagiarismto real inquiry."42
The law, lackingthe luxuryof relyingon gossipfor its analysis,has
had a difficulttime recognizingand dealingwith plagiarism.The term
itselfis not a legalone, andthoughsometimesusedin opinions,it has not
beenjudiciallyexplainedor definedsince 1944.43Hardlya singlemodern
lawbookcontainsan entryfor plagiarismin its index. The lone areain
which the term has developedsome legal currencyis in musical-copyright infringement." There, however,plagiarismsimply means unauthorized copying, a strict-liabilityoffense that cannot be cured by
39. JONATHAN
POEMS
522, 523 (Pat
SwIFT,On Poetry:a Rhapsody,in THECOMPLETE
Rogersed., 1983).
40. Cf Jacobellisv. Ohio,378U.S. 184,197(1964)(Stewart,J., concurring)
(motionpictureat
issue was not "hard-corepornography").Because writing about plagiarismcan make one
of the needto creditsources,I feel compelledto note that I arrivedat this comparison
hyperaware
beforereadinga similarcomparisonin ST.ONGE,
is such
supranote 10, at 51. My hyperawareness
that I also feel compelledto cite MALLON,
supranote 16, at 125(notingthe needto be especially
scrupulousin citingsourceswhenwritingaboutplagiarism).
41.
MALLON,supra note 16, at xi.
42. Id. at xiii.

43. Thatdefinitionappearedin Dieckhausv. TwentiethCentury-FoxFilmCorp.,54 F. Supp.
is copying"),rev'd,153F.2d 893 (8th Cir.),cert.denied,
425, 427 (E.D. Mo. 1944)(" '[p]lagiarism'
329 U.S. 716 (1946). An earlier,morewidelyquoteddefinitionappearedin Tamasv. 20th Century
Fox Film Corp.,25 N.Y.S.2d899, 900 (Crim.Ct. 1941)("[A]ccidental
similarityis not actionable
of the literarycompositionof
plagiarism,for plagiarismis strictlylimitedto the appropriation
anotherand passingoff as one'sown the productof mindand languageof another.").
44. See, e.g., RaphaelMetzger,Name ThatTune:A Proposal
for an IntrinsicTestof Musical
Plagiarism,5 LoY.ENT.L.J.61 (1985)(natureof musicalplagiarismandthe legaltest appliedto it);
Aaron Keyt, Comment,An ImprovedFramework
for MusicPlagiarismLitigation,76 CALIF.L.
REV.421 (1988)(new test for musicplagiarism).

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creditingthe originalcomposer.45In fact, most courts using the term,

writingabouta rangeof subjectsfrom patentsto trademarks,employit
impreciselyas the genericequivalentof copying.46One bewilderedjury,
uncertainexactlywhatthe counseland the judgemeantby "plagiarism"
and otherterminologyused in a trial,sent the bailiffout for a dictionary
duringits deliberations.47
By loosely redefiningplagiarismto meanany formof unauthorized
copying,whetherattributedor not and whetherintentionalor not, the
law has moldedthe meaningof the term to fit its own framework.The
frameworkin which the law has found plagiarismto be most convelaw-a specialty that is itself
niently located is intellectual-property
dividedby subjectmatterinto discretesubspecialties:copyright,patent,
trademark,tradesecrets,and unfaircompetition.48For variousreasons,
the unfair-competition
branch of intellectual-property
law has proved
unsatisfactoryfor many plagiarismcases.49 The occasionaljudicial
45. See infra notes 114-15and accompanying
text.
46. See,e.g., TWMMfg.Co. v. DuraCorp.,722F.2d 1261,1268(6thCir. 1983)("plagiarism"
of a patent);MonogramModels,Inc. v. IndustroMotiveCorp.,448 F.2d 284, 286 (6th Cir. 1971)
of modelairplanes);Plough,Inc. v. Kreis Lab., 314 F.2d 635, 642 (9th Cir. 1963)
("plagiarism"
of a trademark).
("plagiarism"
47. UnitedStatesv. Steele,785 F.2d 743, 744 (9th Cir. 1986).
48. See, e.g., MICHAEL
A. EPSTEIN,
MODERN
INTELLECTUAL
PROPERTY
(2d ed. 1989)
law into the statedcategories).
(dividingintellectual-property
49. Section43(a) of the LanhamTrade-Mark
Act createsa federalcauseof actionfor unfair
of goodsor servicesin commerce,prohibiting"a false
competitionbasedon a falserepresentation
designationof origin, or any false descriptionor representation."15 U.S.C. ? 1125(a)(1988).
Courtslook for a "likelihoodof confusion"betweenthe two products.See International
Orderof
Job'sDaughtersv. Lindeburg& Co., 633 F.2d 912, 917 (9th Cir. 1980),cert.denied,452 U.S. 941
(1981).
Plaintiffshaveoccasionallybroughtcases involvingimproperattributionunderthis statutein
whichtheyalleged"palmingoff"-the defendant's
falserepresentation
thatsomeoneelsecreatedor
endorseda workactuallycreatedby the defendant.See, e.g., Follettv. New Am. Library,497 F.
Supp.304 (S.D.N.Y. 1980)(misleadingdesignationof coauthorshipgiven to editoraftereditor's
name becamewell known);Geisel v. PoynterProds., Inc., 283 F. Supp. 261 (S.D.N.Y. 1968)
(unauthorizedmanufactureof dolls basedon cartoonsby Dr. Seuss). Most instancesof literary
that he or
plagiarismwouldconstitute"reversepalmingoff"-the defendant'sfalserepresentation
she createda workactuallycreatedby another.Onesuchcasefaileduponthe plaintiff'sinabilityto
sustain her claim of authorshipby showing substantialsimilaritybetweenher work and the
defendant's.Litchfieldv. Spielberg,736 F.2d 1352,1356-57(9th Cir. 1984)(accusingthe producers
of the filmE.T.: TheExtra-Terrestrial
of copyingthe plaintiff'splay aboutan aliencreaturewho
came to earth),cert.denied,470 U.S. 1052(1985). Morerecentlythe Ninth Circuithas confined
reversepassingoff "to situationsof bodily appropriation,"
which would includetakingtangible
objectssuchas books(by changingor removingthe title or publisher'sname,for example)but not
the wordstherein. Shawv. Lindheim,919 F.2d 1353, 1364(9th Cir. 1990)(no reversepassingoff
whereproductsare merelysubstantiallysimilar).Moreover,at leastone courthas held that "[t]he
pertinentsectionof the LanhamAct makesactionablethe applicationof 'a false designationof
PIC DesignCorp.v. SterlingPrecisionCorp.,231 F.
origin,'not the removalof a truedesignation,"
Supp. 106, 115 (S.D.N.Y. 1964)(sale of precisiongearswith identifyingmarksremoveddoes not
violatethe LanhamAct), meaningthat the act does not prohibitthe simplefailureto creditthe
actualauthor.

COPYWRONG
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attempts to treat plagiarism as a common-law tort remain aberrations.50

Cases of literary plagiarism are most often handled as cases of copyright infringement." Copyright law aims both to encourage individual
creativity and to encourage the dissemination of the results of the creative effort to the public.52 At times these aims are in opposition, as when
granting authors the exclusive right to their works in order to give them
the financial incentive to create has the effect of preventing others from
improving or adapting those works for the benefit of society. The current
Copyright Act of 1976,53like its predecessors,54 attempts to accommodate both aims by affording protection for only a limited time55and by
allowing for exceptions that permit certain uses of the copyrighted work
by others.56
At present, copyright law protects "original works of authorship
fixed in any tangible medium of expression""57
by giving the copyright
owner the exclusive right to reproduce the work, to prepare derivative
works based on it, to distribute copies of it, and to perform or display it
publicly." Copyright ownership "vests initially in the author or authors
of the work" and may subsequentlybe transferred." Violation of any of
the exclusive rights is termed "infringement,"' and the legal or benefi50. See, e.g., Italiani v. Metro-Goldwyn-MayerCorp., 114 P.2d 370, 372 (Cal. Dist. Ct. App.
1941) (defining plagiarism as a tort involving " 'an intangible incorporeal right,' " quoting 18 C.J.S.
Copyright & Literary Property ? 5, but finding the action barred by the statute of limitations);
Bajpayee v. Rothermich, 372 N.E.2d 817, 821 (Ohio Ct. App. 1977) (finding a cause of action for
plagiarism in tort involving the right of an inventor to be recognized for his scientific discovery even
when he had no copyright in or ownership of the discovery). The latter case was later settled and so
did not progress to final resolution in the courts. Carolyn W. Davenport, Note, Judicial Creationof
the Prima Facie Tort of Plagiarism in Furtheranceof American Protectionof Moral Rights, 29 CASE
W. RES. L. REV. 735, 736 (1979) (discussing Bajpayee).
51. See, e.g., Narell v. Freeman, 872 F.2d 907 (9th Cir. 1989). For a discussion of Narell, see
infra notes 145-58 and accompanying text.
52. See Baker v. Selden, 101 U.S. 99, 103-06 (1880). In holding that a copyright grants only
the exclusive rights to print and publish a copyrighted book, not the exclusive right to use the
information in the book, the Court underscored the basic conflict within copyright law between
society's desire to reward an individual's creativity and effort and its desire at the same time to
receive the benefits of progress from others' use of the same material. Id.
53. 17 U.S.C. ?? 101-914 (1988).
54. Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075 (codified as amended at 17 U.S.C. ?? 1-216
(1976)); Act of July 8, 1870, ch. 230, ?? 85-110, 16 Stat. 212; Act of Feb. 3, 1831, ch. 16, 4 Stat. 436;
Act of May 31, 1790, ch. 15, 1 Stat. 124.
55. 17 U.S.C. ?? 302-305(1988).

56. Id. ?? 107 (fair use), 108 (reproduction by libraries and archives), 110 (certain
performances and displays), 11I (secondary transmissions), 112 (ephemeral recordings), 115
(compulsory license for making and distributing phonorecords), 116 (public performancesby means
of coin-operated phonorecord players), 117 (computer programs), 118 (noncommercial
broadcasting), 119 (secondary transmissions for private home viewing).
57. Id. ? 102.
58. Id. ? 106.
59. Id. ?9201.
60. Id. ? 501(a).

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cial ownerof an exclusiverighthas standingto sue for its infringement.61

Remediesfor infringementinclude injunctiverelief, impoundmentor
destructionof the infringingarticles,and a monetaryawardof actual
damagesand profits,statutorydamages,and costs and attorney'sfees.62
A practicalinquiryfocusingon the resultof copyingnecessarilyprecedesa findingof copyrightinfringement.The courtexaminesthe allegedly infringingworkto determine,first,whetherit was copiedfrom the
allegedlyinfringedworkand not independentlycreated;and second,if it
was copied,whetherthe copyingwas wrongful.63 The plaintiffcan prove
copyingby presentingboth evidenceof similaritybetweenthe two works
(includingexperttestimony)and evidenceof the defendant'saccess to
the plaintiff'swork. The two worksneed not be identical,but must be
substantiallysimilar;64where the degreeof similarityis great enough,
access can be presumedratherthan proven.65For the copying to be
adjudgedwrongful,the ordinarylay observerratherthanthe expertmust
concludethat therehas been improperappropriation
of the copyrighted
material.66
Plagiarismis not necessarilycopyrightinfringement,nor is copyright infringementnecessarilyplagiarism.The two conceptsdivergein

respectto three main aspectsof the offense: copying,attribution,and
intent. In some ways the conceptof plagiarismis broaderthan infringement, in that it can includethe copyingof ideas, or of expressionnot
protectedby copyright,that would not constituteinfringement,and it
can includethe copyingof smallamountsof materialthat copyrightlaw
would disregard.67In other ways the concept of infringementis the
broaderone, in that it can includeboth properlyattributedcopyingand
unintentional copying that would be excused from being called
plagiarism.6"
The divergencebetweenplagiarism'spopulardefinitionand copyright'sstatutoryframeworksuggestsan essentialcontradictionbetween
61. Id. ? 501(b).
62. Id. ?? 502-505.

63. Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946).
64. For a time the Ninth Circuit used a bifurcated test of substantial similarity, which was
both extrinsic (looking for similarity in ideas: plot, theme, dialogue, mood, setting, pace, or
sequence) and intrinsic (looking for similarity in expression, and focusing on the response of the
ordinary reasonable person to the concept and feel of the work). Sid & Marty Krofft Television
Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977). This test has since been
scaled back to apply to similarity of expression only. Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th
Cir. 1990).
65. Arnstein, 154 F.2d at 468-69.
66. Id. But see Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1232 (3d Cir.
1986) (questioning the advisabilityof excluding expert testimony in cases involving complex material
unfamiliar to the general public, such as computer programs), cert. denied, 479 U.S. 1031 (1987).
67. See infra notes 69-72 and accompanying text.
68. See infra notes 73-87 and accompanying text.

1992]
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what is at stake in plagiarism-the creative process-and what is at stake

in copyright infringement-the creative result. Plagiarism raises questions about aspects of the relationship between copying and creativity:
originality and authorship;attribution;carelessness and intent; amounts,
types, and sources of copying; and the harm to the plagiarist, the victim,
and society. Despite its concern with wrongful copying, copyright law
cannot answer all these questions. By emphasizing result the law accommodates certain practical constraints of civil litigation, such as the
requirements of an identifiable plaintiff and a showing of measurable
harm, but it turns its attention away from the creative process.
A.
Copying
Fundamental to both plagiarismand copyright infringementis some
kind of wrongful copying from a preexisting work. But the form, the
amount, and the source of the copying prohibited as copyright infringement are different from those of the copying condemned as plagiarism.
Plagiarism is a broad concept that includes the copying of words
and thoughts in a variety of forms. According to the Modern Language
Association,
Plagiarismmay take the form of repeatinganother'ssentencesas your
someown, adoptinga particularlyapt phraseas yourown,paraphrasing
one else'sargumentas yourownor evenpresentingsomeoneelse'sline of
thinkingin the developmentof a thesis [as]thoughit wereyourown. In
short, to plagiarizeis to give the impressionthat you have writtenor
thoughtsomethingthat you have in fact borrowedfrom another.69
While this is a comprehensive definition, and perhaps unworkable in
seeming to require appending a footnote to virtually every sentence in a
scholarly paper, it reflects the widespread understandingthat plagiarism
extends to ideas in addition to expression. Plagiarism can include the
imitation of structure, research, and organization as well as language.
Especially in the sciences, where ideas rather than words are the scientist's stock-in-trade, accusations of plagiarism may center on the content
of discoveries or the interpretationof data rather than on specific phraseology.70 Plagiarism consists not in the resulting duplication of a particular mode of expression but in the process of copying, regardless of
whether the copied material is "expression" or "idea." Even facts or
quotations can be plagiarized, through the trick of citing to a quotation
from a primary source rather than to the secondary source in which the
69.
ST. ONGE, supra note 10, at 53 (quoting the MLA HANDBOOK).
70. In one of science's most famous and longest running disputes, Sir Isaac Newton spent some
twenty years attempting to prove that Leibniz had plagiarized differential calculus from him.
Richard T. Glazebrook & I. Bernard Cohen, Sir Isaac Newton, in 16 ENCYCLOPAEDIABRITANNICA
362, 365 (1963). Historians have since concluded that Leibniz and Newton invented calculus
independently of one another. Id.

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plagiaristfoundit in orderto concealrelianceon the secondarysource.7'

The processof copyinga small amountof materialfrom an unattributedsource is no less plagiarismthan is the copying of a large
amount. In practicalterms,of course,the plagiarismin a long work of
just one sentenceis unlikelyto be noticedor, if noticed,unlikelyto be
criticized. Technically,though, the taking of even a single resonant
phrasewouldbe plagiarism.
Copyingfrom any sourcequalifiesas plagiarism,even if the source
has beenin existencefor centuries.Whena journalistaccusedof plagiarismdefendedherselfby sayingthat she had merelycopiedfroma report
that had itself been copied from documentsin the public domain,the
arbitratorsaid she had plagiarizedas surely as if she "had lifted the
"72 Even whereno harmcould possiwhole reportfromthe Britannica.
bly resultto the originalwork(whichmay be long out of print)or to the
originalauthor(who may be long dead),the audienceis still duped,and
plagiarismis still wrongas a misuseof the creativeprocess.
In definingcopyrightinfringement,the law has substantiallynarrowed all of the characteristicsof illicit copying as plagiarismdefines
them. Copyrightlaw makesa distinctionbetween"expression,"which
the law protectsagainstcopying,and "ideas,"whichit does not.73 This
hasproveddifdistinction,knownas the "idea/expression
dichotomy,"74
ficultto applybecausethereis often no brightline demarcatingan idea
from its expression,and each distinction must necessarilybe made
according to highly individual criteria. As Judge Learned Hand
observed,"Nobodyhas everbeenable to fix that boundary,and nobody
ever can."75In a similarfashion,copyrightlaw does not protectfacts,
only the way in which they are expressedor compiled;the facts themselvesare in the publicdomain.76The authorof a historicalnovel who
71. Cf J.J. Hunsecker, Naked City, SPY, Sept. 1990, at 64 ("Artful Footnoting Rule No. 1:
Primary sources are better than secondary sources, so, whenever possible, use the footnotes in
secondary sources to cite primary sources.").
72. Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d
1234, 1239 (D.C. Cir. 1971) (supporting the arbitrator'sfinding of plagiarism).
73. The Copyright Act allows protection to works "fixed in any tangible medium of
expression, now known or later developed," and specifically denies protection to "any idea,
procedure, process, system, method of operation, concept, principle, or discovery." 17 U.S.C. ? 102
(1988).
74. Feist Publications, Inc. v. Rural Tel. Serv. Co., 111 S. Ct. 1282, 1290 (1991).
75. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S.
902 (1931).
76. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978-79 (2d Cir.), cert. denied, 449
U.S. 841 (1980). See generally Jane C. Ginsburg, Creation and Commercial Value: Copyright
Protectionof Worksof Information, 90 COLUM.L. REV. 1865 (1990) (advocating greater protection
of "low-authorship"informational works); David E. Shipley & Jeffrey S. Hay, ProtectingResearch:
Copyright, Common-Law Alternatives, and Federal Preemption, 63 N.C. L. REV. 125 (1984)
(methods of protecting against nonliteral copying of nonfiction).

1992]
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admittedto havingconsulteda nonfictionworkon the sameperiodand

who appearedto have borrowedphrasesand paraphrasedfactualstatements-actions that wouldconstituteplagiarism-wasfoundnot to have
infringedthe copyrighton the nonfictionbookbecausethe materialcopied was not a " 'sequenceof creativeexpression.'"77
Copyright law draws lines between protectible expression and
unprotectibleidea, and betweenprotectibleexpressionand unprotectible
fact, in responseto a profoundpolicy concern: the fear that a grantof
copyrightprotectionthat functionsas a monopolyon ideasor facts will
dangerouslyimpairthe free flow of ideas and information.JudgeHand
continued,"[W]hilewe are as awareas any one that the line, whereverit
is drawn,will seem arbitrary,that is no excusefor not drawingit; it is a
questionsuch as courtsmust answerin nearlyall cases."78
By beingexpansivein its definitionof copying,or perhapsin its definitionof expression,copyrightlaw has sensiblyavoidedone of the strictures of the idea/expressiondichotomy:it has eliminatedparaphrasing
as a defense to a charge of infringement. To qualify as copyright
infringementthe copyingof expressionneed not be exact.79In the context of infringement,JudgeHand addressedthe questionof paraphrasing, observingthat copyrightprotection"cannotbe limited literallyto
the text, else a plagiaristwouldescapeby immaterialvariations.""sHis
dictum appliesequally well in the context of plagiarism,where paraphrasingis a common subterfugepracticedby plagiariststo hide the
sourceof their material.
Besidesnarrowingits rangeof concernto the copyingof expression,
however,copyrightlaw is not concernedwith all expressionbut merely
with protectedexpression.In other words,copyrightinfringementcan
occur only when the copied work has met the applicablestatutory
requirementsof age, registration,or notice.81If the copied work is too
77. Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (quoting Salinger v. Random House,
Inc., 811 F.2d 90, 98 (2d Cir.), cert. denied, 484 U.S. 890 (1987)). Narell is discussed further infra at
notes 145-58 and accompanying text.
78. Nichols, 45 F.2d at 122; cf RICHARDA. POSNER,LAW ANDLITERATURE
341-42 (1988)
(defending the idea/expression dichotomy by arguing that ideas are not the creative elements in
literature, unlike in science or philosophy).
79. See Craft v. Kobler, 667 F. Supp. 120, 124 (S.D.N.Y. 1987) (writing protected by
copyright is infringed by a paraphrase that, despite alterations, appropriates the "craft of
authorship" of the original).
80. Nichols, 45 F.2d at 121.
81. At present, a new work by a single author is protected for the lifetime of the author plus
fifty years, 17 U.S.C. ? 302 (1988); registrationis necessary not for protection but as a prerequisiteto
a suit for infringement, 17 U.S.C. ? 411 (1988) (though registration may take place after the action
has been instituted, Frederick Chusid & Co. v. Marshall Leeman & Co., Inc., 326 F. Supp. 1043,
1063-64 (S.D.N.Y. 1971)); and notice is not requiredbut, if given, eliminates the defense of innocent
infringement, 17 U.S.C. ? 401(d) (1988).

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old to fall underthe copyrightstatute,82was writtenby a government

employee,83or has otherwiselost its protection,it is in the publicdomain
and cannot be infringed. This basic differencebetweenplagiarismand
infringementdemonstratesthat while plagiarismis a failureof the creative process as manifestedin unattributedcopying from any source,
copyrightlaw examinesthe harmthat resultsfromcopying--concluding
in this case that a worknot protectedby statutecannotbe harmed.
Althoughcopyingeven a small amountof an earlierwork can be
plagiarism,to be copyrightinfringementthe copyingmustbe substantial.
Copyrightlaw, like other legal analyses, applies the doctrine of de
minimisnon curatlex: the law does not concernitself with trifles.84If
the new work is not based in a substantialway, either qualitativelyor
on the earlierwork,or if the appropriated
portionof the
quantitatively,85
there
earlierwork was not qualitativelyor quantitativelysubstantial,86
has beenno infringement.Although"no plagiaristcan excusethe wrong
substantialcopyby showinghow muchof his workhe did not pirate,""87
ing is necessaryto turnplagiarismin the popularsenseinto infringement
in the legal sense. The law thus looks to the new workand its effecton
the earlierwork-not to the processof plagiarismbut to its result.
B. Attribution
The connectionof the author'sname with the work invokes the

essenceof the relationshipbetweenthe creatorand the creation. This
connectionhas monetaryvaluein that the copyright,whichincludesthe
right to controlpublicationand other exploitationof the work,belongs
initiallyto the author.88 Thereis also nonmonetaryvalueto havingone's
name associatedwith a work. In a standardcommercialpublishing
agreement,bookauthorswho sell publicationrightshavelittleor no control over the editing,design, production,marketing,or distributionof
82. See 17 U.S.C. ?? 302-305.
83. Id. ? 105.
84. BLACK'SLAW DICTIONARY,
supra note 10, at 431. See generally RALPHR. SHAW,
LITERARY
IN THEUNITEDSTATES
PROPERTY
45-46 (1950) (de minimisprinciplein copyright
law).
85. See WhelanAssocs.,Inc. v. JaslowDental Lab.,Inc., 797 F.2d 1222, 1245-46(3d Cir.
cert.denied,
1986)(qualitativeratherthanquantitative
similaritycan showcopyrightinfringement),
479 U.S. 1031(1987).
86. See, e.g., MathewsConveyerCo. v. Palmer-BeeCo., 135 F.2d 73, 84-85(6th Cir. 1943)
out of a thousandin a catalogis not substantial);
Hoffmanv. Le
(allegedcopyingof two illustrations
Traunik,209 F. 375, 379 (N.D.N.Y. 1913)(allegedcopyingof a few phrasesfrom a vaudeville
monologueis not substantial).
87. Sheldonv. Metro-Goldwyn
PicturesCorp.,81 F.2d 49, 56 (2d Cir.),cert.denied,298 U.S.
669 (1936).
88. 17 U.S.C. ? 201 (1988).

1992]
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529
theirbooks89-butauthorswho findthis arrangement

alienatingcan gain
comfortfromthe sight of theirnameson the title page. In noncommercial publications,such as scholarlyor scientificjournals, seeing their
namesin print-and havingtheirnamesseenby others-is the only compensationauthorsreceive.90
Plagiarism,with its lack of attribution,severs the connection
betweenthe originalauthor'snameandthe work. A plagiarist,by falsely
claiming authorshipof someone else's material,directly assaults the
author'sinterestin receivingcredit. In contrast,attributionis largely
irrelevantto a claim of copyright infringement. Where copying is
authorized,the authorhas no common-lawright to attribution;such a
right is nonexistentunless createdby contract.91Conversely,infringement can occurevenwhena workis properlyattributedif the copyingis
not authorized-for example,a piratededition of a book producedby
someonewho does not own the publicationrights.
Eventhe fair-usedoctrine,influentialin shapingcourts'perceptions
of what degreeof copyingis acceptableundercopyrightlaw, is silenton
the questionof attribution.Fairuse, whichallowscertainlimitedusesof
copyrightedworkswithoutauthorization,permitscopyingof portionsof
another'swork "for purposessuch as criticism,comment,news reporting, teaching ...
, scholarship, or research."92 By making fair use of a
workin theseways,the usersaddsomethingto the materialby placingit

in an analyticalor criticalcontext,therebymakingit their propertyin
the Lockeansense.93
The CopyrightAct identifiesfour factorsto considerin makinga
89. See WINCOR,
supranote 6, at 95-105(typesof bookcontractsandthe allocationof rights
betweenpublishersand authors).
90. SHAW,supranote 84, at 24.
91. Mortonv. Raphael,79 N.E.2d 522, 524 (Ill. App. Ct. 1948) (" 'As the authorhas no
inherentcommon-lawrightto havehis nameusedin connectionwith his work,his namemay be
wholly omittedfromthe work,if the proprietorof it sees fit so to do ... .' ") (quoting18 C.J.S.
Copyright& LiteraryProperty? 10, at 144);see also Harris v. Twentieth Century-Fox Film Corp., 35
F. Supp. 153, 155 (S.D.N.Y. 1940) (absence of contractual provision for author's credit eliminated
"all rights generally known as the moral rights of authors, which rights include the right to credit as
author of a work"); De Bekker v. Frederick A. Stokes Co., 153 N.Y.S. 1066, 1068 (App. Div. 1915)
("The plaintiff was not entitled to have his own name appear in the book."). Contra Clemens v.
Press Publishing Co., 122 N.Y.S. 206, 208 (App. Div. 1910) (Seabury, J., concurring) ("The
purchaser cannot garble it, or put it out under another name than the author's; nor can he omit
altogether the name of the author, unless his contract with the latter permits him so to do."). See
generally SHAW,supra note 84, at 23-25, 116 (recommending incorporationinto copyright law of an
author's "right to credit," which would be an incentive to publication as the only form of advertising
available to scientists and scholars).
92. 17 U.S.C. ? 107 (1988).
93. See supra note 18; see also Pierre N. Leval, Towarda Fair Use Standard, 103 HARV.L.
REV. 1105, 1111 (1990) ("I believe the answer to the question of justification [of fair use] turns
primarily on whether, and to what extent, the challenged use is transformative. The use must be
productive and must employ the quoted matter in a differentmanner or for a differentpurpose from
the original."). But see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 447-55

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determinationof fairuse: "(1) the purposeand characterof the use ... ;

(2) the natureof the copyrightedwork;(3) the amountand substantiality of the portionused in relationto the copyrightedwork as a whole;
and (4) the effectof the use uponthe potentialmarketfor or valueof the
copyrightedwork."94Plagiarismwould seem to be disqualifiedfrom
being a fair use becauseits purposeis to mislead,but the other listed
factorsalso enter into the fair-usecalculation,"95and attributionis the
unknownvariable.Beyondhonoringthe author,attributionservespurposes consistentwith the criticaland scholarlyaims of fair use, such as
directingthe readerto additionalsource material. Lack of attribution
does not automaticallymakeplagiarismthe ultimate"unfairuse,"however;indeed,the fair-usedefensehas been successfullyraisedwherethe
quotedmaterialbore no attribution.96'
With its emphasison the fourstatedfactors,fairuse is an explicitly
result-oriented
doctrine.Onejudgewho has ruledon severalwell-known
fair-usecaseswrote,"Theinquiryshouldfocusnot on the moralityof the
secondaryuser,but on whetherher creationclaimingthe benefitsof the
doctrineis of the type that shouldreceivethosebenefits.""97
The distinction he made betweenthe moralityof the user and the natureof the
creationis equallya distinctionbetweenprocessand result.
Somelegal systemselsewherein the worldview the failureto attribute materialto its author as an infringementof the author's"moral
Theserightsbelongto the authorof a creativeworkregardless
rights.""98
of whetherthe authoractuallypossessesthe workor holds the copyright
in it, and they reflecta view of creativeworksas the expressionof the
personalityof their creatorsratherthan as a form of property.99The
elementsmakingup what is called the droit moral includeattribution
(acknowledgmentof authorship),integrity (preventionof deforming
(1984) (home videotaping of copyrighted broadcasts,even in their entirety and unchanged, is fair use
when for noncommercial purposes).
94. 17 U.S.C. ? 107 (1988).

95. See Marcus v. Rowley, 695 F.2d 1171, 1176-77 (9th Cir. 1983) (even an educational use is
disqualifiedfrom the fair-use exception if it is substantial enough); cf Schroeder v. William Morrow
& Co., 566 F.2d 3, 6 (7th Cir. 1977) (copying data in order to save the time needed to verify them
independently is not a valid fair use).
96. See, e.g., Narell v. Freeman, 872 F.2d 907, 913-15 (9th Cir. 1989) (unattributedborrowing
of material from a nonfiction book for a novel is fair use).
97. Leval, supra note 93, at 1126 (reconsidering, among other cases, Salinger v. Random
House, 650 F. Supp. 413 (S.D.N.Y. 1986), rev'd, 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890
(1987), and New Era Publications Int'l, ApS v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y.
1988), aff'd on other grounds, 873 F.2d 576 (2d Cir. 1989)).
98.
See generally
MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT
? 8.21[A], at 8-254 to
8-263 (1991) ("Moral rights appear to be of greatest importance in France,

Germany, and Italy," id. at 8-254 n.1).
99. Charles Clark, Moral Rights-More Than a Matter of Integrity, BOOKSELLER,
Sept. 2,
1988, at 903.

1992]
COPYWRONG
531
changes), disclosure(determinationof how and when a work is first

made public),and disavowal(withdrawalof a work)."?
For the last severaldecadesthe Americancopyrightcommunityhas
debated the place of moral rights in United States law. Legislators
repeatedlydeclined to enact moral-rightslegislation,and courts disavowedmoralrightsas a partof copyrightlaw."o0In 1989,however,the
United Statesjoinedthe BerneCopyrightConvention,102whichrequires
as a minimumthat its membersprotectthe moralrights of attribution
and integrity.103Nevertheless,the extentof Americanmoral-rightsprotection has remainedunclear: the Berne ConventionImplementation
Act, which put the Berne Conventioninto effect, states that United
States adherenceto Bernedoes "not expandor reduceany right of an
author"to assertthe rightsof attributionand integrityin any copyrightablework.?" Somecommentatorsbelievethat Berneis likelyto alterthe
spiritif not the letterof copyrightlaw and will makecourtsmoresympathetic to assertionsof moralrightsas they look to Berneand the decisions of other Berne signatoriesfor guidance.105Moreover,legislators
haveapparentlyrecognizedmoralrightsto someextentby amendingthe
CopyrightAct to give certainvisual artists a limited right of attribution.106 As yet, however,protectionfor the moralrightof attributionin
100. See generally Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of
Artists, Authors and Creators, 53 HARV.L. REV. 554, 558-65 (1940).
101. See, e.g., Gilliam v. American Broadcasting Cos., 538 F.2d 14, 24 (2d Cir. 1976)
("American copyright law, as presently written, does not recognize moral rights or provide a cause
of action for their violation, since the law seeks to vindicate the economic, rather than the personal,
rights of authors.");see also Leval, supra note 93, at 1128 ("Our copyright law has developed over
hundreds of years for a very differentpurpose and with rules and consequences that are incompatible
with the droit moral.").
102. Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971, in
COPYRIGHT
LAWSANDTREATIES
OFTHEWORLD(compiled by the United Nations Educational,
Scientific and Cultural Organization and the World Intellectual Property Organization 1990), Item
H-l, at 1 (Supp. 1972).
103. Id. art. 6 bis.
104. Pub. L. No. 100-568, ? 3(b), 102 Stat. 2853 (1988) (codified as amended at 17 U.S.C.
? 104(c) (1988)).
105. NIMMER& NIMMER,supra note 98, ? 8.21[A][2][b], at 8-257 to 8-263.
106. The right of attribution was granted to the author of a "work of visual art," defined as "a
painting, drawing, print, or sculpture, existing in a single copy, [or] in a limited edition of 200 copies
or fewer" or "a still photographicimage ... existing in a single copy ... or in a limited edition of 200
copies or fewer . . . ." Visual Artists Rights Act of 1990, 17 U.S.C.A. ? 101(a)(1), (2) (West Supp.
1991). An author's right of attributionincludes the right "to claim authorship ... to prevent the use
of his or her name as the author of any work of visual art which he or she did not create ... [and] to
prevent the use of his or her name as the author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial to his or her honor or
reputation . . . ." Id. ? 106A. This protection, confined as it is to limited-edition visual works, is far
from a ringing affirmationof authors' moral rights. It does not apply, for example, to audiovisual
works such as motion pictures, despite the fervent wish of some artists to prevent colorization of
their films.

532
CALIFORNIA
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[Vol. 80:513
literaryworksis not an explicitor establishedpartof UnitedStatescopyright law.

Copyrightlaw'sinsensitivityto the issueof attribution,despiteattribution'scentralplace in the definitionof plagiarism,demonstratesonce
again the law's focus on result, not process. In the popular view,
plagiaristsshortchangeboth themselvesand the originalauthors. In the
view of copyrightlaw, the only harmthat countsis the resultingharmto
the infringedwork, which is indifferentto claims of authorshipthat
attachto it. Attributionof authorshipis the highlypersonalconnection
betweenauthorand work,but the interestthat copyrightprotectsis the
impersonalconnectionbetweenownerand property.
C
Intent
A commondefenseto accusationsof plagiarismis the claimof accidentalcopying,often throughfaultynotetakingin which originalmaterialwas inadvertentlymingledwith materialcopiedfromanothersource.
For example,a professorat the Universityof Californiaat Berkeley
ascribedthe close parallelsbetweenthe languageof a newspaperarticle
he had writtenand anotherauthor'sjournalarticleon the same subject
to his practiceof writingthe article"fromhis own readingnotes which
probablytoo closelyresembledthe originaltexts."'o' He saidhis lack of
intent to copy proved that plagiarismwas "not what occurredhere.
What'soccurredherewas a dumbmistake."'o8Similarly,a firstnovelist
called the appearancein his book of fifty-threepassagesfrom another
writer'snovel" 'themost awfulmistake,whichhappenedbecauseI made
notes from variousbooks as I went along and then lost the notebook
telling where they came from.' "'9
Manywouldagreethat whenthe copyingis genuinelyaccidental,it

Giventhe imitativeandassimiis not plagiarismbutjust a "mistake."10o
lative processof learning,it is not surprisingwhen the mind fools itself
into forgettingthat its thoughtsare not entirelyoriginal. One president
of CornellUniversitydefendedhimselfagainsta chargeof plagiarismby
demonstratinghis photographicmemory, which had enabled him to
reproduceunintentionallya passageby anotherauthorin his inaugural
address. The presidentrecitedparagraphsfrombookschosenat random
107. Alexei Barrionuevo, Prof's Piece: Plagiarism or Mere Blunder?, DAILY CALIFORNIAN,
Mar. 8, 1991, at 1, 4.
108. Id.
109. MALLON,supra note 16, at 110 (quoting Susan H. Anderson, New Novelist Is Called a
Plagiarist, N.Y. TIMES,Oct. 22, 1980, at C7) (internal quotation omitted). For a discussion of Jacob
Epstein's plagiarizing in his novel Wild Oats parts of Martin Amis' The Rachel Papers, see id. at 89143.
110. Cf ST. ONGE,supra note 10, at 60 ("There must be evidence of intent to deceive and
misrepresentauthorship. The evidence can be internal and textual or external and circumstantial.").

1992]
COPYWRONG
533
from his study shelves,and his listenersclearedhim."'

Observersand criticsare sometimesreluctantto acceptthe plagiarist'sclaimof lack of intent,but theirreluctanceis morelikelydue to an
inabilityto believethe excusethan to a convictionthat accidentalcopying is equivalentto plagiarism.The Berkeleyprofessor'scredibilitysufferswhen one learnsthat he was not presentat the meetinghe so vividly
described12 becauseone realizesthat he must have knownthe description in his notes had been writtenby someoneelse. Likewise,the first
novelist,an American,musthaveknownthat at least one of the passages
he had copiedinto his notebookwas not his own becauseit containeda
referenceto a Britishadvicecolumnist;in his novel he substituteda referenceto Ann Landers."3
In the languageof the law, intentto deceivewouldbe an elementof
the offenseof plagiarism.Copyrightinfringement,however,is a strictliabilityoffense: an infringeris liableno matterhow the copyingcame
about,regardlessof intentor the lack of it."114The law considersnot the
processthat led to the infringement,with mitigatingor excusingfactors;
it considersonly the resultinginfringementand punishesaccordingly.
The fair-usedefenseis a uniqueexceptionto the strict liabilityarising
from infringement,but even in fair use the court examinessuch resultorientedcriteriaas the natureand amountof the use, so that to quote
material with the best of intentions can still constitute copyright
infringement.'
The differentviewsof intentreflectedin plagiarismand in infringement reflectdifferentunderstandingsof harm. Plagiarismis a diffuse
offenseagainstsociety,harmingmany participantsin the creativetransaction. The plagiaristis deprivedof experiencingthe satisfactionand
learning that come from participationin the creative process. The
authorof the copiedworkmay sufferfinancialharmthrougha reduction
in the salabilityof the originalworkor reputationalharmthrougha mis111. ST. ONGE,supra note 10, at 6-7.
112. Barrionuevo, supra note 107, at 1.
113. MALLON,supra note 16, at 111 (calling this the "smoking gun").
114. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198 (1931) (hotel owner who transmitted
musical radio broadcasts was liable despite his lack of advance knowledge of their content); Shapiro,
Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963) (sellers of pirated records were
liable regardless of their lack of actual knowledge of piracy); Toksvig v. Bruce Publishing Co., 181
F.2d 664 (7th Cir. 1950) (lack of knowledge that the copied materials were original translations does
not preclude liability). But see De Acosta v. Brown, 146 F.2d 408, 413-14 (2d Cir. 1944) (Hand, J.,
dissenting) (publisher who did not know an article was the product of plagiarism by its author
should not be liable), cert. denied, 325 U.S. 862 (1945).
115. Wihtol v. Crow, 309 F.2d 777, 781 (8th Cir. 1962) (copyright statute has insufficient
"elasticity or flexibility" to make allowances for good intentions). But see New York Tribune, Inc.
v. Otis & Co., 39 F. Supp. 67, 68 (S.D.N.Y. 1941) (although the intent to infringe is not essential to a
cause of action for copyright infringement, the defendant's intention "bears upon the question of
'fair use' ").

534
CALIFORNIA
LAWREVIEW
[Vol. 80:513
perceptionthat the originalwork was insteadcopied."6 Similarly,the

originalworkmay be injuredfinanciallyor reputationally.The genuine
contributionsof the new workmightbe devaluedonce the workhas been
taintedas plagiaristic.All writersand scholarsmaybe disadvantaged
by
the unfair head start that plagiaristsgain over those who do not
plagiarize. The public as a whole may be deceived, defrauded,or
misinformed.
The law has a narrowerconceptionof the harmcausedby infringement. The law limits standingto the copyrightowner and measures
harmby impairmentof that owner'seconomicinterest. The law allows
an infringementactiononly wherethe infringerhas benefitedand allows
recoveryonly where the value of the originalwork has been reduced.
The law makesharmpart of the "substantialsimilarity"calculation;if
the infringingworkhas not harmedthe infringedwork,the similarityis
likelynot substantial.The harmthe law recognizesis not to the process
but to the resultalone.
III
LEGAL METAPHORS: INTELLECTUAL PROPERTY AND THE
CREATIVE
CONTRACT
Next, o'erhis Bookshis eyesbeganto roll,
In pleasingmemoryof all he stole,
How herehe sipp'd,howtherehe plunder'dsnug
And suck'dall o'er, like an industriousBug.
Here lay poorFletcher'shalf-eatscenes,and here
TheFripperyof crucify'dMoliere....
-Alexander Pope, TheDunciad"117
Differentlegal doctrinesincorporateprocessand result to varying

degrees. Contractlaw, for example,providesa frameworkto governand
definethe processby whicha contractis formedand interpreted.Property law is less interestedin how propertycameto be than in identifying
its boundaries,its owner, and its value. The choice to treat words as
"intellectualproperty"startedthe law on a path to evaluatingthe creative processthroughscrutinyof its result,whichdivergesfromthe popular pathto evaluatingthe creativeprocessthroughscrutinyof the process
itself. Withthis emphasison result,copyrightlaw has narrowedits concern with wrongfulcopying to exclude many instancesof plagiarism.
The choice of a new legal frameworkto transcendthe limitationsof the
116. Cf Marcus v. Rowley, 695 F.2d 1171, 1173-74 (9th Cir. 1983) (plaintiff, the author of a
cake-decorating booklet, learned it had been copied when a reader of her booklet erroneously
accused her of plagiarizing the booklet copied from hers).
117. ALEXANDERPOPE, The Dunciad, bk. 1, 11. 127-32, in POETRYAND PROSE OF
ALEXANDERPOPE312 (Aubrey Williams ed., 1969).

COPYWRONG
1992]
535
of creold frameworkcouldleadto a morecompletelegalunderstanding

result
both
and
ativityby incorporating
process.
An often-citedantecedentof copyrightlaw is the story of Saint
Columba, who in the year 567 surreptitiouslycopied a psalmbook
belongingto his teacher,Finnianof Moville. WhenFinnianobjected,the
disputewent beforeKing Diarmed. The king concludedthat both the
originaland the copy belongedto Finnian,saying, "To every cow her
calf, and accordinglyto everybook its copy.""s Diarmedsaw the book
as Finnian'sproperty,the ownershipof which entitled Finnian to its
product,the copy. The king'srulingthus pointedin the directionof the
futuredevelopmentof copyrightlaw.
law arosein the settingof commercialpublishIntellectual-property
The
motive
force
behind
ing.
legal protectionfor publishedworks did
not emanatefrom authors,scholars,and scientists;it came from booksellers,printers,and publishers.After the popularizationof the printing
press in the mid-1400s,printersproliferatedand became increasingly
competitivein a world whereliteracywas limitedand book production
outstrippeddemand. During the 1500s the governmentof England
placedlegal controlson the printingindustry,ostensiblyto preventthe
piracy of printedworks by rival printersbut motivatedlargelyby the
desireto preventthe publicationof books challengingroyal or church
authority. For the next hundredyears,the state permittedthe printing
of books or pamphletsonly by license."- The first interventionof the
law into the booktrade,then,was not on behalfof the authorto establish
a connectionto the work but on behalf of the state to regulatethe
printer'sright to copy.
Not untilthe Statuteof Anne in 1710did the law formallyrecognize
authorsas well. Until that time writinghadbeenseenas eitherthe occupationof gentlemenof leisure,who had independentsourcesof income
and who felt thatacceptanceof moneyfor theirwritingwouldbe beneath
them, or of men of less noble birth who sought supportfrom wealthy
patrons.'20 Having little bargainingpower, writers had to accept
whateverprintersand booksellerswere willing to pay them for selling
copies of their works.'12 The Statute of Anne, drafted in part by
JonathanSwift,gave authorsthe exclusiveright to printnew worksfor
fourteenyears,renewablefor fourteenmoreyears,andthe exclusiveright
THE PROTECTION
OF LITERARY
PROPERTY
7 (rev. ed. 1978); see
118. PHILIPWITTENBERG,
also LINDEY,
supranote 14, at 101 (recountingthe storyof SaintColumbaand citingFinnianv.
Columbaas the firstreportedcopyrightcase).
119. WITTENBERG, supra note 118, at 10-22.
120. Id. at 22-28.

121. Id. at 24, 26-27.

536
CALIFORNIA
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[Vol. 80:513
to publish existing works for twenty-one years.122 With this development, for the first time, "[t]he notion that the author had always had a
common-law right in his property found legal recognition."'23 The subsequent development of copyright law in England and the United States
has built upon this notion that the relationshipbetween authors and their
writings is that of owners to their property.
The law's categorization of written material as property springs
from the belief that the "law of nature" entitles human beings to reap the
fruits of their labors.124According to Blackstone:
Whena manby the exertionof his rationalpowershas producedan original work,he has clearlya right to disposeof that identicalwork as he
pleases,and any attemptto take it fromhim, or varythe dispositionhe
has madeof it, is an invasionof his rightof property.125
Thus, an essential attribute of property in the Anglo-American legal
system is exclusivity of ownership. Property is "[t]hat which is peculiar
or proper to any person; that which belongs exclusively to one."126 The
owner of property has "the unrestricted and exclusive right to a thing;
the right to dispose of a thing in every legal way, to possess it, to use it,
and to exclude every one else from interferingwith it."127 Certain kinds
of property, such as natural resources, are not subject to exclusive use,128
but these are exceptions to the general rule of exclusivity.
If words are property, they are an odd form of property. At any
instant they are finite in number and yet can be freely and infinitely
invented or duplicated. They cannot be marked with the insignia of ownership. When first invented they are subject to exclusive possession
before being written or uttered, yet such exclusive possession leaves them
incapable of fulfilling their communicative function. They can be initially withheld from others, but once transmitted, they can never be
retrieved. They are used to convey meanings that have developed over
122.
ALAN LATMAN ET AL., COPYRIGHTFOR THE NINETIES: CASES AND MATERIALS 2-3 (3d
ed. 1989); WITTENBERG,

supra note 118, at 28.
123. WITTENBERG,
supra note 118, at 29.
124.
1 WILLIAM BLACKSTONE,COMMENTARIES*405-06.
125. 1 Id.
126. BLACK'S
LAWDICTIONARY,
supranote 10, at 1216;see also WashingtonMedicalCtr.,
from
Inc. v. UnitedStates,545 F.2d 116,125(Ct. Cl. 1976)(quotingsimilardefinitionof "property"
1382(4th ed. 1968)),cert.denied,434 U.S. 902 (1977).
LAWDICTIONARY
BLACK'S
127. BLACK'S
supra note 10, at 1216;see also People v. Martinez,250
LAWDICTIONARY,
N.Y.S.2d28, 31 (Crim.Ct. 1964)(quotingsimilardefinitionin an earliereditionof Black'sLaw
WENDELL
OLIVER
HOLMES,
JR., THECOMMON
Dictionary);
LAW246(Boston,Little,Brown1881)
by policy,the owneris allowedto exercisehis naturalpowersoverthe
("Withinthe limitsprescribed
uninterfered
with,andis moreor less protectedin excludingotherpeoplefromsuch
subject-matter
interference.The owneris allowedto excludeall, and is accountableto no one.").
128. See Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law. EffectiveJudicial
Intervention, 68 MICH.L. REV. 471 (1970) (legal concept of property rights in natural resources,
specifically water, as held in trust by government for the general public).

1992]
COPYWRONG
537
centuriesbut can be instantly shifted in fresh and surprisingways.

Themselvescomposedof alphabeticalsymbols,they are of little value
whenseparatedfromthe largermatrixof literaturein whichthey arethe
symbols.
Courts and legal scholars have long recognized that literary propdiffers
from other forms of property. Justice Holmes remarkedupon
erty
the unusual qualities of this variety of intangible property:
The notionof propertystarts,I suppose,fromconfirmedpossessionof a
tangibleobjectand consistsin the rightto excludeothersfrom interference with the moreor less free doing with it as one wills. But in copyright propertyhas reacheda more abstractexpression. The right to
exclude is not directedto an objectin possessionor owned, but is in
vacuo,so to speak. It restrainsthe spontaneityof men wherebut for it
therewouldbe nothingof any kindto hindertheirdoingas they saw fit.
It is a prohibitionof conductremotefromthe personsor tangiblesof the
party havingthe right. It may be infringeda thousandmiles from the
ownerand withouthis ever becomingawareof the wrong. It is a right
whichcould not be recognizedor enduredfor morethan a limitedtime,
and therefore,I may remarkin passing,it is one which hardlycan be
conceivedexceptas a productof statute,as the authoritiesnow agree.129
Judge Seabury noted that the purchaser of literary property has more
circumscribedabilities to use it than does the purchaserof other kinds of
property:
Eventhe matterof fact attitudeof the law doesnot requireus to consider
the sale of the rightsto a literaryproductionin the same way that we
would consider the sale of a barrel of pork. . . . The man who sells a
barrelof pork to anothermay pocketthe purchaseprice and retainno

furtherinterestin whatbecomesof the pork. Whilean authormaywrite
to earnhis livingandmaysell his literaryproductions,yet the purchaser,
in the absenceof a contractwhichpermitshim so to do, cannotmakeas
free a use of it as he could of the porkwhich he purchased.130
Nevertheless, such judicial discomfort has not interfered with the
law's readiness to treat what it calls "intellectual property" as it treats
other forms of property.'"' Copyright law has duplicated the protection
provided by traditional property doctrines by setting statutory boundaries similar to the physical boundariesof tangible property and by formulating exclusive rights of ownership, such as the right to exclude, to use,
129. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 19 (1908) (Holmes, J.,
concurring), supersededby statutes as stated in Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240 (3d Cir. 1983).
130. Clemens v. Press Publishing Co., 122 N.Y.S. 206, 207-08 (App. Div. 1910) (Seabury, J.,
concurring).
131. " 'Nothing can with greater propriety be called a man's property than the fruit of his
brain.' " Waring v. Dunlea, 26 F. Supp. 338, 340 (E.D.N.C. 1939) (quoting COPINGER'S
LAW OF
COPYRIGHT
1 (5th ed.)).

538
LAWREVIEW
CALIFORNIA
[Vol. 80:513
and to transfer.'32
In termsof an author'scommercialconcerns,the notionof intellectual propertyis both appealingand appropriate.It providesa conceptually simplemodelon which to base legal analysis,and it accountsfor
the economicinterestsat stake. If a poem is property,peoplecan buy
and sell it, inheritit, or otherwisetransferit. It has a legal existence
separatefrom its authorand from which the authorcan benefit.
But authorsalso have noneconomicintereststo whichthe notionof
intellectualpropertycorrespondsless well. Peoplewho makean illuminating discovery,write a profoundand beautiful essay, or invent a
trenchantepigrammay want less to own their creationsthan to receive
creditfor them. Ownershipwouldgive themthe abilityto withholdtheir
contributionsfrom others,but what most authorswant is to communilaw does not providea usefulframecate them.133 Intellectual-property
workto governthis communicationor to ensurethatcreatorsreceivefull
creditfor their creationswhen the communicationoccurs.
The law's choice of the propertyframeworkfor wordswas not an
inevitableone. As first-yearlaw studentslearn,the law encompassesa
varietyof doctrinalareas,each with its own terminology,lines of cases,
rationales,and expressedvalues. Somedoctrines,such as contracts,deal
largelywith plannedinteractionsbetweenpeople;others,such as torts,
deal largelywith interactionsthat are unplanned;still others, such as
property,deal largelywith the objectsof those interactions.
Despite their differences,all legal doctrinesshare their identityas
metaphors. They reflect variousways of seeing the world, each way
incompleteby itself but overlappingwith and complementaryto the
others. In combination,thesemetaphorsaremoreeffectivethantheyare
singly. For example,addingthe spontaneityof tortsto the deliberateness
of contractsproducesa moreaccuratepictureof the spectrumof human
interactionsthan would eitheralone.
Yet all too often legal metaphorsare not used in combinationto
enlargeour understandingbut in isolationto constrictit. A metaphor
can distortour analysisby squeezingit into a mold for which it is not
132. See Gordon, supra note 27, at 1354-94 (refuting the misconception that copyright has
deviated from common-law property principles by imposing uniquely intrusive restraints).
133. That ownership is inconsistent with communication is revealed by the reasoning of Justice
Yates, in the famous English decision of Millar v. Taylor, which has been summarized as follows:
I may call an idea "mine" (he reasoned) only while I keep it to myself. But when I
communicate that idea to you, it becomes "our" idea; for I cannot thereafter prevent you
from thinking it or using it at your pleasure. Indeed, my very act of communicating the
idea to you negatives the existence of any intention on my part to withhold it from you.
When an author publishes his work, he communicates his ideas to the world at large. He
thus makes a present of his ideas to the public. Thereupon those ideas become the
common property of all.
ARTSAND THEJUDICIALPROCESS118 (1965) (paraphrasing
JOHNF. WHICHER,THE CREATIVE
Millar v. Taylor, 4 Burrow 2303, 98 Eng. Rep. 201 (K.B. 1769) (Yates, J., dissenting)).

1992]
COPYWRONG
539
suited.134 The power of a metaphor to shape our understanding is
profound, and yet, as Robert Frost said, "All metaphor breaks down
somewhere."'35 Judge Frank has also cautioned us about labels, which
"canhave immenseconsequences.... Stressinga newlyperceivedlikeness betweenmanyparticularhappeningswhichhad theretoforeseemed
unlike,[the label]may blindus to continuingunlikenesses.Hypnotized
by a label which emphasizesidentities,we may be led to ignoredifferences..... For, with its stresson uniformity,an abstractionor generalization tendsto becometotalitarianin its attitudetowarduniqueness."136
The metaphor of intellectual property is capable of distorting the
law's analysis of human creativity. When we talk carelessly about intellectual property, we reduce a voluminous, diverse mixture of stray
thoughts, dogged research efforts, fragmentary phrases, epics, stunning
insights, and blind alleys to mere commodities. Property is thought of as
being subject to exclusive ownership, over and over, in sequence. But
each creative act takes place within a web of contributions from a community of creators,137 a web that spans both time and space. The property metaphor is misleading for words because words are meant to be
shared, not possessed. Words-as well as music and the visual and performing arts-are a medium of communication.'38 As such, they are
subject to rejection, misunderstanding,or distortion during their passage
from creator to audience, as well as to recognition, appreciation, or
improvement. What they are not subject to is ownership.
To improve our legal metaphor we must look beyond the idea of
property as something we possess to the larger legal context within which
property exists. Property is more than an aggregation of separate chains
of ownership. It is a network of relationships, constantly realigned and
134. Cf Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal
Opportunity,87 MICH.L. REV. 2128, 2130-32 (1989) (pointing out the pitfalls of "sausage analysis,"
in which ingredients, no matter how aberrant or grotesque, put into a sausage-makingmachine are
labeled "sausage" when they emerge at the other end).
135. Robert Frost, Education by Poetry, reprinted in ROBERTA. GREENBERG
& JAMESG.
HEPBURN,
ROBERT FROST: AN INTRODUCTION82-83 (1961), quoted in WHICHER, supra note 133,
at 78. Frost preceded this statement with the advice that

unless you have had your proper poetical education in the metaphor, you are not safe
anywhere. Because you are not at ease with figurative values: You don't know the
metaphor in its strength and its weakness. You don't know how far you may expect to ride
it and when it may break down with you.
Id.
136. Granz v. Harris, 198 F.2d 585, 590-91 (2d Cir. 1952) (Frank, J., concurring) (objecting to
the term "Moral Right") (quoting Guiseppi v. Walling, 144 F.2d 608, 618-19 (2d Cir. 1944), aff'd,
Gemsco, Inc. v. Walling, 324 U.S. 244 (1945)).
137.
Cf CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S
DEVELOPMENT
24-63 (1982) (contrasting the "hierarchyof rights" with the "web of relationships").
138. "The heart of language is not 'expression'of something antecedent, much less expression of
antecedent thought. It is communication; the establishment of cooperation in an activity in which
there are partners, and in which the activity of each is modified and regulated by partnership."
JOHN DEWEY, EXPERIENCE AND NATURE 179 (1925).

540
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readjustedthroughtransactionsthat the law understandsas contracts.

The contract metaphor adds to the intellectual-propertymetaphor
becauseit focusesas much on the processof the transactionas on the
result. It assumesthe existenceof dealingsbetweenpeople,unlike the
propertymetaphor,which assumesthe existenceof a bundle of rights
thatan ownerholdsagainstothers. Contractis a meetingof minds,not a
placingof boundaries.
Some political philosophers-most notably Hobbes, Locke, and
Rousseau139-havetheorized that societies are based on an implicit
"socialcontract"in which peoplecome togetherin communitiesto gain
the benefitsof safety,security,and support,and in exchangerelinquish
theirfreedomto behaveexactlyas they choose. The laws of the community becomethe expressionof its social contract-its commonlanguage,
the systemof wordsthat enablesits membersto communicate.Thismetaphormay lack historicalvalidity,and may makeunwarrantedassumptions about the contract'sbindingpower,but it at least recognizesthat
society is a collectionof humanbeingswhose lives are spentin interactions with one another.
As the social contract is a metaphorfor political life, perhaps
anotherkind of contractis a metaphorfor effortsat creativityand communication:the "creativecontract."Those who enterinto the creative
contractrecognizethat the creativeresultis inseparablefromthe process
of creationand that a creationis incompleteuntil it is communicated.
By virtueof livingamongotherpeople,everyoneis a partyto the creative
contract as both a creatorand a memberof the audience. Creators
promiseto offertheireffortswith honesty,sincerity,and care;audiences
promiseto accepttheir effortsin the same spirit.
Thinkingof creativityin termsof this largersocial relationshipand
viewinginfractionsagainstliteraryethics,suchas plagiarism,as breaches
of the creativecontractas well as infringementsof propertyrights can
open new avenuesof legal analysis. Intellectualpropertyis an inadequatemetaphornot becausethe structureof propertylaw is inadequate
but becausethe termitselfmakespeoplethinktoo simplisticallyof words
as propertyto be owned. The contractmetaphorremindsus that property can be shared, exchanged,bargainedover, and used, as well as
owned.
Wherepropertylaw is defensive,contractlaw is facilitative.Contract law anticipatesimperfectionsin dealingsbetweenpeopleand provideswaysto interpretand resolvetheseimperfections.This new way of
thinkingaboutcopyrightdisputescouldbringmoreinformationinto our
139. See THOMASHOBBES,LEVIATHAN
(C.B. MacPherson ed., Penguin Books 1951) (1651);
LOCKE, supra
note
18; JEAN
JACQUES
ROUSSEAU,
THE
SOCIAL CONTRACT
(G.D.H. Cole trans., E.P. Dutton 1950) (1762).

AND
DISCOURSES
1992]
COPYWRONG
541
legal decisions. Instead of restrictingour inquiry to rights expressly

grantedby contractin particulartransactions,140we could considerthe
broaderimplicationsof the creativecontract,in the same way that the
and "usageof trade"
law of contractsconsiderscommonunderstandings
as impliedcontractterms.141 For example,the author'sdesirefor attribution, which has not found secureprotectionin the intellectual-property regime,could be considereda termof the impliedcreativecontract,
along with the other "moralrights." The traditionallegal reluctanceto
examinethe artisticmerit of a work-hard to explainunderthe property-lawregime that allows measurementsof the value of propertywouldbecomeconsistentwith the reluctanceto measurethe adequacyof
the considerationin a bargain.142After all, there is no way to force a
creatorto be inspired,and the law is correctin refusingto draw lines
betweenthe meritoriousand the inferior. But the law can draw lines
between a creativeexchangeattemptedin good faith and one that is
flawed.143Most important,the law could look beyondthe partiesimmediately involvedin a transactionto assess a decision'simpact on the
largercreativecommunity,the third-partybeneficiaryof the transaction.
This kind of policy analysisis entirelyconsistentwith copyrightlaw's
recognitionof responsibilityto societyas a wholeas well as to individual
creators.'"
Some courts,while holdingto the propertymetaphor,have broadenedtheirinquiriesin waysconsistentwith the contractmetaphor.Irena
Narell, the authorof a book aboutthe historyof Jewishfamiliesin the
San FranciscoBay area,accusedhistoricalnovelistCynthiaFreemanof
havingplagiarizedher nonfictionbook, and sued for copyrightinfringement.145 The Courtof Appealsfor the Ninth Circuit,reviewingthe dis140. See, e.g., Edisonv. Viva Int'l, Ltd., 421 N.Y.S.2d203, 206 (App. Div. 1979)("so-called
'moralright'is controlledby the lawof contract");
see alsoGranz,198F.2dat 588(in the absenceof
a contractualprovisionto the contrary,a recordproducercould sell recordingsabbreviated
from
masterdiscs);Vargasv. Esquire,Inc., 164F.2d 522, 525-26(7th Cir. 1947)(no rightto attribution
for illustrationswhereartisthadenteredintocontractdivestinghimof any "right,claimor interest"
in the illustrations);
Harrisv. TwentiethCentury-FoxFilm Corp.,43 F. Supp.119, 121(S.D.N.Y.
1942) (coauthorof a screenplayretainedno right to screencredit after contractingto sell all
propertyrights);cf casescitedsupranote91 (in whichauthorsweredeniedthe rightof attribution
for workssold absentcontractualprovisionscreatingsuch a right).
141. See generally RESTATEMENT
(SECOND)OF CONTRACTS
? 222 (1979) (defining usage of
tradeas "a usagehavingsuchregularityof observancein a place,vocation,or tradeas to justifyan

expectationthat it will be observedwith respectto a particularagreement"and commentingon
determination
of and weightgivento this usagein contractinterpretation).
142. Seegenerallyid. at ? 79 cmt.c ("Ordinarily
... courtsdo not inquireinto the adequacyof
consideration.").
143. Cf Wood v. Lucy, Lady Duff-Gordon,118 N.E. 214 (N.Y. 1917)(findingpromiseof
"reasonableefforts"impliedin employmentagreementand evaluatingwhethersuch promisewas
fulfilled).
144. See supranote 52 and accompanying
text.
145. Narellv. Freeman,872 F.2d 907 (9th Cir. 1989).

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trict court's grant of summary judgment for Freeman, presented its

analysis in terms of traditional intellectual-property principles.
Although Freeman had "admitted consulting Narell's book during her
research and taking 'language'from it,"'46 the court found that there had
been no copying of protected expression;the copying was merely of facts
and of "ordinary phrases.""47 Then, having already found sufficient
grounds to uphold the grant of summary judgment on the basis that
there had been no wrongful copying, the court went on to buttress its
conclusion by holding in addition that the two works were not substantially similar'48 and that Freeman had made fair use of Narell's
history.149
The conduct in Narell v. Freeman is a paradigm of the differences

between plagiarism, which perhaps it was, and copyright infringement,
which it was not. The court deemed the copying that unquestionably
took place to be legally insignificantbecause the material copied was not
expression and because it was insubstantial in both quantity (consisting
of some three hundred words out of a full-length book) and quality (consisting merely of "background material" not "at the heart" of the
book).'50 Failure to attribute the copied material to its original authora hallmark of plagiarism--did not invalidate Freeman's fair-use defense
to infringement.'5' And even though Freeman said she had used Narell's
book during her research and some of the phrases in her book had
"undoubtedly" come from Narell's, this intentional copying was not
infringement,primarilybecause the market for the original work had not
been harmed.152
Yet the court's analysis was informed by factors more closely
related to plagiarism than to infringement-factors more closely related
to the creative contract than to intellectual property. At first, in standard intellectual-propertyfashion, the court dutifully turned its attention
to the characteristics inherent in the copied work itself, illustrating its
holding that the copied language was so ordinary as to be unprotectible
with the implication that copying the phrase "crawling with alligators"
was the only way to avoid such awkward paraphrasesas "populated by
sluggish, broad-headed loricates."'53
Later in its consideration of whether the copied material was protectible, however, the court looked to characteristics of the creative
146.
147.
148.
149.
150.
151.
152.
153.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at 910.
at 911-12.
at 912-13.
at 913-15.
at 909, 913.
at 914-15.
at 910, 914-15.
at 911.

1992]
COPYWRONG
543
transactionthat had taken place between Narell and Freemanwhen

FreemanusedNarell'sbookas a sourceof historicalinformation.Unlike
a hypotheticalauthorwho might copy lines directlyfrom Longfellow's
poem "PaulRevere'sRide"to use in her own poem,Freemandrewfrom
Narell'shistory"in creatingan entirelydifferentkindof story."'54In its
analysisof the questionof substantialsimilarity,the courtagainreturned
to the "fundamentaldifferences"betweenNarell'swork of historyand
Freeman'swork of fiction.'55As a concurringopinionpointedout, the
court,havingfoundno wrongfulcopying,did not needto reachthe question of substantialsimilarityat all."56Its insistenceon reachingthat
question allowed it to further explore the nature of the interaction
betweenthe two authors,perhapsmotivatedby an underlyingconviction
that indeedthe purposeof a nonfictionbook is to serve as a reference
source for later works. In this discussionthe court shiftedits focus to
what Freemandid, not what she produced.
The court againturnedits attentionfrom resultto processwhen it
consideredthe matterof attribution.It raisedthe issue in its discussion
of fair use, stating that the purposeand characterof the use weighed
"heavilyagainstFreemanbecauseshe did not acknowledgein her work
that she had consultedOurCity in writingIllusions."'57 Laterthe court
implied that an "honorable"author would "acknowledgesources.'"158
This hint that attributionwouldhavebeenappropriatesuggestsone way
in which contractprinciplescan enrichthe law of creativity. To avoid
allowinga plagiaristan unearnedbenefitfromthe workof another,attributionshouldbe a part of the impliedcontractbetweentwo writers.
The troublesomeissueof self-plagiarism,
whichprimarilyharmsthe
audienceratherthan the author,also demonstratesthe usefulnessof the
contractmetaphorto enlargeand supplementthe law'sintellectual-property metaphor. Self-plagiarismoccurs when a work echoes an earlier
work by the same author. Such an echo appearsin two works on the
economicsof copyrightlaw by Judge Posner, an advocateof lessened
copyrightprotection."59Becauseboth the memory and the inventive
154. Id. at 912.
155. Id. at 912-13.
156. Id. at 915 (Hall, J., concurring).
157. Id. at 914.
158. Id.
159. Compare
The difficult case is that of the noncritical parody, perhaps better described as "burlesque."
It is best illustrated by Jack Benny's burlesque of Gas Light. Benny was not making fun of
Gas Light the way "Myra Buttle" was making fun of The Waste Land, any more than
Abbott and Costello were making fun of Frankenstein or Dracula in Abbott and Costello
Meet Frankenstein. Humorous but not ridiculing versions of the original, these burlesques
are derivative works in a pure form, and modern copyright law gives the copyright holder
the exclusive right to make such works. A derivative work is a substitute, though an
imperfect one, for the original; it may therefore siphon revenues from the original work not

544
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powers of even the most brilliantlycreative mind are limited, some

degreeof repetitionwithinthe worksof a singleauthoris inevitable.It
becomesobjectionableonly whenit resultsfromlazinessor the desireto
mislead.
Of all the varietiesof plagiarism,self-plagiarismcorrespondsmost
closely to copyrightinfringementbecauseat least one of the threeareas
of divergencebetweenthe two conceptsvanishesentirely. The key element of self-plagiarism
is the act of copying. Intent is less at issue, for
authorswouldbe unlikelyto copy theirown earlierworksto a noticeable
extentwithoutmeaningto do so. Attributionis not at issueat all, for in
the misrepresentation
is not of authorshipbut of the novself-plagiarism
the
An
of
work.
who
author
elty
copied
repeatsmaterialin two different
publishedworksis not deceivingthe readeraboutwho wrote the material. The deceptionis of readerswho invest time or money in a work
with the expectationthat its contentsaredifferentfrom,or at leastdifferently expressedthan, the contentsof the author'sother works. These
readersare left feelingthat they have receivedless than they had bargainedfor.
A copyrightinfringementsuit will neverresultfromself-plagiarism
unless the copyrightof the earlierwork belongsto someoneother than
the copyrightownerof the later work. For example,in 1984the musician John Fogerty wrote a song reminiscentof one he had writtenin
1970. Fogertyhad sold all rightsto the earliersong, and the purchaser
of those rights brought a lawsuit for copyrightinfringementagainst
by disparaging that work but by satisfying part of the demand for it. So maybe the law
should try to distinguish between parody and burlesque and treat the latter but not the
former as infringing. The difficulty of doing this should be obvious. Yet the law may
already be doing it implicitly by the emphasis it places on whether the allegedly infringing
work is fulfilling the demand for the original work (which a parody does not do); if so it is a
derivative work, and infringing.
POSNER,supra note 78, at 350-51 (footnotes omitted) with
A difficult case is that of the noncritical parody, perhaps better described as "burlesque"
and well illustrated by Jack Benny's famous burlesque of Gas Light. Benny was not
attacking Gas Light any more than Abbott and Costello were attacking Frankenstein in
Abbott and Costello Meet Frankenstein. Humorous but not ridiculing versions of the
original, these burlesques are derivative works in a pure form, and modern copyright law
gives the copyright holder the exclusive right to make such works. A derivative work is a
substitute, though an imperfect one, for the original; it may thereforesiphon revenues from
the original work not by disparaging that work but by satisfying part of the demand for it.
So maybe the law should try to distinguish between parody and burlesque and treat the
latter but not the former as infringing. The difficulty of doing this should be obvious. Yet
the law may already be doing it implicitly by the emphasis it places on whether the
allegedly infringing work is fulfilling the demand for the original work (which a parody
does not do); if so it is a derivative work and infringing.
William M. Landes & Richard A. Posner, An Economic Analysis of CopyrightLaw, 18 J. LEGAL
STUD. 325, 359-60 (1989) (footnotes omitted). Neither source cites the other, and while the book's
copyright notice names the President and Fellows of Harvard College, the article's copyright notice
names the University of Chicago.

1992]
COPYWRONG
545
"0
Fogerty and the distributorof the second song. The infringement
actioneventuallyfounderedupon the plaintiff'sfailureto show substantial similaritybetweenthe two songs.161
In the 1950s Dashiell Hammettwas accusedof self-plagiarismby
the filmstudiothat ownedmotion-picturerightsto his book TheMaltese
Falcon. 162 The studio claimedthat Hammett'suse of some of the same
charactersin a laterdetectivestorywith a similarplot infringedits copyright. The courtanalyzedthe problemaccordingto propertyprinciples,
reasoningthat becausethe grantof motion-picturerightsdid not include
specificlanguagegrantingexclusivecharacterrightsas well, the author
retainedthose rights. In dictum,the courtwent on to state that characters are not protectibleby copyrightunlessthey "reallyconstitute[] the
story being told."163 Subsequentcourts have struggledto differentiate
charactersthat are protectibleby copyrightfrom those that are not.64
Use of the contractmetaphorwouldhaveshiftedthe court'sinquiry
fromthe property-based
question"Wasthe secondworka copy?"to the
contract-basedquestion "Was the second work copied?" This latter
question,focusingon process,would have promptedthe court to think
aboutthe transactionbetweenthe audienceandthe creator.The harmin
self-plagiarismis to the audience,not the creator-Hammett himself
would not have used the same charactersin more than one story if he
had had any objectionto doing so. Ratherthan lookingat the creative
resultto determinewhetherit was copyrightableor infringing,the court
could have lookedat the creativeprocessitself. Examiningthe creative
contractbetweenHammettandthe audiencecouldhavehelpedthe court
to understandthe contractbetweenHammettand the studio. Whatwas
impliedby Hammett'stransferof the motion-picturerightsto his book?
Did the audienceexpect Hammettneveragainto writeaboutthe same
characters?Did the audienceexpecthim neverto write anotherdetective story? Did the audiencerely on misrepresentations
by Hammettas
to the contentor noveltyof his new story? Wasthe copyingdoneas part
of the processof producinga story that enhancedthe earlierstory, or
was it done to harm,mislead,or defraud?The answersto these questions would have allowed the court to reach the same result-no
160. Fantasy, Inc. v. Fogerty, 654 F. Supp. 1129 (N.D. Cal. 1987).
161. Katherine Bishop, A Victoryfor the CreativeProcess, N.Y. TIMES,Nov. 11, 1988, at B5.
162. Warner Bros. Pictures, Inc. v. Columbia Broadcasting Sys., Inc., 216 F.2d 945 (9th Cir.
1954), cert. denied, 348 U.S. 971 (1955).
163. Id. at 950.
164. See, e.g., Silverman v. CBS, Inc., 870 F.2d 40 (2d Cir.) (Amos and Andy protected by
copyright), cert. denied, 492 U.S. 907 (1989); Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91
(2d Cir. 1981) (Hopalong Cassidy protected); Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th
Cir. 1978) (Disney cartoon characters protected), cert. denied, 439 U.S. 1132 (1979). See generally
E. Fulton Brylawski, Protectionof Characters-Sam Spade Revisited, 22 BULL.COPYRIGHT
SOC'Y
77 (1974).

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infringement-withouthavingto attemptthe impossibletaskof defining

the boundariesof protectibleintellectualproperty.
The contractmetaphor,like all legal metaphors,can becomeharmful if used to eliminatedifficultquestionsratherthan illuminatethem.
But the law need not discardits metaphors;it can benefitfrom transmetaformingor combiningthem. Holdingto the intellectual-property
the
Court
has
the
roundly rejected165
phor,
suggestionsby
Supreme
commentatorsin a varietyof contextsthatthe protectionandconsequent
financialinterest grantedby copyrightshould be based on the labor
invested166-theprocess,not the result. By lookingto the contractmetaphor, the law could take the process into account as well. When an
authorbeginsto write,thereis nevera guaranteeof what the resultwill
be. The law'sgoal shouldbe to safeguardthe processby rewardingthose
who undertaketo createa work accordingto the termsof the creative
contract.
IV
ALTERNATIVES
Plagiarism?the hell with it! I thoroughlybelieveRostandswipedmy

friend'splay. But Rostandmade it into a beautifulthing,didn'the, so
what'sthe odds?
-George JeanNathan167
I left publishingand was in my second year of law school when I
receiveda telephonecall from a formercoworker. He was considering
the purchaseof publicationrightsto a manuscriptthathappenedto have
beenwrittenby the authorwhoseplagiarismI had uncovereda few years
before. My coworkerhad never heardthat story, but a mutualfriend
who had heardit had told him he ought to talk to me. Hadn'tI once
editeda bookby this author?my coworkerasked. Had I likedthe book?
What had the authorbeen like to workwith?
By then I knewenoughaboutcopyrightlaw to understandwhy the
publisher'slawyershad been so unconcerned.Copyingfive peripheral
paragraphsfrom three books totallingsome eight hundredpages altogether was substantialin neither quantitynor quality. Even had the
authorsof the copiedpassagesbotheredto bringan infringementaction,
they would most likely have lost.
Yet, describing my experience, I felt fresh anger, not at the lawyers
or the law but at the author and the publisher. By writing the book the
165. Feist Publications, Inc. v. Rural Tel. Serv. Co., 111 S. Ct. 1282, 1295 (1991).
166. See, e.g., Ginsburg, supra note 76, at 1898-99 (advocating protection under the "sweat of
the brow" theory).
167. WITTENBERG,
supra note 118, at 130 (quoting George J. Nathan). Nathan, the drama
critic, was commenting on the accusation of plagiarism made against Edmund Rostand for his play
Cyrano de Bergerac. See also LINDEY,supra note 14, at 128-29.

1992]
COPYWRONG
547
way he had, the authorhadbreachedthe duty he had assumedunderthe

creative contract-to synthesize information obtained from many
sourcesinto a fluid,coherentwhole-and neverthelessreceiveda financial rewardas well as authorialcreditthat reinforcedhis statusas a professional writer, a status that had helped him to earn a living in a
competitivefield. By silentlyacceptingthe author'sexcusesand publishing the book anyway, the publisherhad become a conspiratorin the
author'sschemeto distortthe creativeprocess.
Now the questionsin my mind were aboutboth literaryethics and
the law. I wonderedhow the law shouldprotectcreativity.Whatcould
an understandingof plagiarismadd to an understandingof copyright
of copyrightlaw add to an underlaw, and whatcould an understanding
of
standing plagiarism?
In answeringthese questions,it would be helpful to considerthe
social goals that the law is to implement.Perhapswe imaginea society
in which creativepeopleare free to exercisetheirtalentswithoutoverly
burdensomerestrictions;in whichthe publiccan enjoythe fruitsof creative labors;and in whichthe disappointedor untalentedare not tempted
to misusethe law to bringthe creativeprocessof othersto a halt.168
In pursuitof thesegoals,we can striveto makethe law moretrueto
the creativeprocess. Copyrightlaw shouldopen itself to a broaderway
of understanding
words. We haveseen that copyrightlaw does not prohibit all copying, including some varieties of plagiarism. Copyright
infringementfails to correspondto plagiarismbecausethereis morethan
one way to view words. In copyrightlaw, wordsare property,the result
of the creativeprocess. In plagiarism,words are part of the process
itself, and the process is of both creationand communication.Ultimately,these two concepts-process and result-are inseparable.
By looking beyond the tangibleform of a book as a "product,"
courtshavealreadydemonstratedtheirabilityto formulateanalysesthat
comprehendthe specialnatureof words. In the latestin a seriesof fruitless attemptsto imposestrict liabilityon publishersfor the information
containedin their books,169two mushroomhunterswho had become
168. The danger of malicious or deluded accusations of plagiarism is substantial. One court
noted "that obsessive conviction, so frequent among authors and composers, that all similarities
between their works and any others which appear later must inevitably be ascribed to plagiarism."
Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612, 613 (2d Cir. 1945), cert. denied, 327 U.S. 790 (1946);
see also sources cited supra note 33.
The plaintiff in Arnstein v. Porter, 154 F.2d 464, 467 (2d Cir. 1946), became well known in the
courts for his repeated allegations of plagiarism by such famous composers as Cole Porter. See
LINDEY,supra note 14, at 193-98 (Arnstein's six unsuccessful lawsuits).
169. See, e.g., Jones v. J.B. Lippincott Co., 694 F. Supp. 1216 (D. Md. 1988) (nursing student
injured by self-treatmentwith remedy listed in nursing textbook); Lewin v. McCreight, 655 F. Supp.
282 (E.D. Mich. 1987) (plaintiffs injured by explosion while following instructions in metalsmithing
book); Roman v. City of New York, 442 N.Y.S.2d 945 (Sup. Ct. 1981) (family planning organization

548
CALIFORNIA
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seriouslyill from eating poisonousmushroomssued the publisherof a

mushroomguidethey had used.17 Decliningto applyproducts-liability
standards,the Ninth Circuitdifferentiatedthe physicalobjectcalled a
book from the ideas and expressioncontainedwithinit: "Thefirstmay
be a product,but the secondis not.""' The courtbasedits reasoningon
the "highpriority[of] the unfetteredexchangeof ideas. We acceptthe
risk that words and ideas have wings we cannot clip and which carry
them we knownot where. The threatof liabilitywithoutfault ... could
seriouslyinhibitthose who wish to sharethoughtsand theories."i72
By recognizingthat books are morethan products,and that words
are more than property,courts can be more sophisticatedin their
approachto creativedisputesthan they are at present. At first glance,
the legal definitionof originalitywould appearto incorporatean understandingof the weblikecomplexityof the creativeprocessby excluding
"novelty"as a relevantattribute.Copyrightlaw insiststhat "originality"
means merelythat a work "owes its origin"to the creator;"73in other
words,it is the resultof its author'slabors,but it need not be novel.174
Courtssteadfastlyrefuseto assessa work'snoveltyor intrinsicmerit."'5
Indeed,with its emphasison precedent,the law is predisposedto regard
the lack of noveltyas a virtue.
Yet the concept of novelty constantly recurs in copyrightlaw.
"Original,as the termis usedin copyright,meansonly thatthe workwas
independentlycreatedby the author(as opposedto copied from other
works), and that it possesses at least some minimal degree of creativity."176 Though the meaningof "creativity" in this context is hard to
not liable for misstatement in contraceptive pamphlet);Walter v. Bauer, 439 N.Y.S.2d 821 (Sup. Ct.
1981) (student injured performing science project described in textbook); Smith v. Linn, 563 A.2d
123 (Pa. Super. Ct. 1989) (death of dieter who followed instructions in diet book), aff'd, 587 A.2d
309 (Pa. 1991).
170. Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991).
171. Id. at 1034.
172. Id. at 1035; see also Appellee's Brief at 9, Winter v. G.P. Putnam's Sons, 938 F.2d 1033
(9th Cir. 1991) (No. 89-16308) (" 'Ideas hold a privileged position in our society. They are not
equivalent to commercial products. Those who are in the business of distributing the ideas of other
people perform a unique and essential function.' " (quoting Cardozo v. True, 342 So. 2d 1053, 105657 (Fla. App. 1977))).
173. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884).
174. "[I]f by some magic a man who had never known it were to compose anew Keats's Ode on
a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem,
though they might of course copy Keats's." Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49,
54 (2d Cir.), cert. denied, 298 U.S. 669 (1936); see also Feist Publications, Inc. v. Rural Tel. Serv.
Co., 111 S. Ct. 1282, 1287 (1991) ("Originalitydoes not signify novelty; a work may be original even
though it closely resembles other works so long as the similarity is fortuitous, not the result of
copying.").
175. See, e.g., Bleistein v. Donaldson LithographingCo., 188 U.S. 239, 251 (1903) ("It would be
a dangerous undertaking for persons trained only to the law to constitute themselves final judges of
the worth of pictorial illustrations
.... .").
176. Feist, 111 S. Ct. at 1287 (emphasis added).

1992]
COPYWRONG
549
specify,'77noveltyis at leastone of its components.The courtthatfound

creativityto be lackingin the designof a plasticcorsageremarkedthat
the "degreeof creativitynecessaryto defineobjectsas worksof art is not
suppliedthroughinnovationswhich are solely utilitarianor mechanical,"'78implyingthat nonutilitarianor nonmechanicalinnovationscould
have evidencedsufficientcreativity.
Thus, on one hand the law deniesthe relevanceof novelty;on the
other hand the law nonethelesstakes note of noveltyby qualifyingthe
requirementof "originality"as a conditionof copyrightprotectionwith
the requirementof "creativity,"which includes"novelty."This qualificationonce againshiftsthe focus of legal inquiryfromprocessto result.
Thoughthe law definesoriginalityin termsof the processof creationby
the author,it definescreativityas a characteristicof the resultingcreation.'79 The law is not comfortablewith inquiringinto the creativeprocess, and so it prefersto believethat the finderof fact can unambiguously
trace a work's originsthroughsuch methodsas examiningsimilarities
betweenit and other works or examiningthe access its author might
havehad to otherworks.'80 This approachis naiveand failsto takeinto
accountsuch difficultquestionsas how to be sure an authoris creating
new expressionratherthan remembering
it. Societyrecognizesthat process and resultare one and promotesthe best use of the creativeprocess,
believingthat this will finallylead to the most meritoriousresults. The
law studies only the results, recognizingno differencebetween the
inspiredand the ordinary.
The law also assumesthat it can separateideasand facts fromtheir
expression.'8l It regardsfacts as havingan objectiveexistencedistinct
fromthe existenceof the humanbeingswho discernthem. Recentlythe
SupremeCourt declared,"The distinctionis one betweencreationand
discovery: the first personto find and reporta particularfact has not
createdthe fact;he or she has merelydiscoveredits existence."'82This
view of objectivetruth has been discardedby a variety of different
177. For examples of the "almost total lack of ability on the part of the courts to enunciate
reasoning for their findings of creativity or lack thereof which would prove useful in formulating an
understanding of what creativity is," see Mitzi S. Phalen, Comment, How Much Is Enough? The
Searchfor a Standard of Creativityin Worksof Authorship UnderSection 102(a) of the CopyrightAct
of 1976, 68 NEB. L. REV. 835, 838, passim (1989).
178. Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776, 781 (S.D.N.Y. 1968).
179. See NIMMER& NIMMER,supra note 98, ? 2.08[B], at 2-86 ("Where creativity refers to the
nature of the work itself, originality refers to the nature of the author's contribution to the work.").
180. See supra notes 63-66 and accompanying text.
181. See supra notes 73-78 and accompanying text.
182. Feist Publications, Inc. v. Rural Tel. Serv. Co., 111 S. Ct. 1282, 1288 (1991); cf Oliver v.
Saint Germain Found., 41 F. Supp. 296 (S.D. Cal. 1941) (treating as fact the contents of a book
reportedly dictated by a spirit messenger, and holding the book's factual contents were not protected
by copyright).

550
LAWREVIEW
CALIFORNIA
[Vol. 80:513
schoolsof twentieth-century
praglegalthought,includingpositivism,"83
matism,184postmodernism,185nihilism,l86 and CriticalLegalStudies,187
all of which insteadsee the existenceand content of the discoveryas
being dependenton the discoverer.Far from subscribingto the idea/
expressionor fact/expressiondichotomy, those who belong to these
schoolsof thoughtwould say that thereis nothingbut expression.
The law need not cling to simplificationsaboutthe natureof originalityand the natureof truth,drawingendlessfine distinctionsbetween
and forgettingthat copyright
differentkindsof creativeachievements"88
law, like all law, is aboutpeople. By embracinga new metaphor,the law
can acknowledgethat intellectualpropertydoes not existin isolationbut
is broughtinto beingby creatorswho adaptand assimilatethe work of
others. The contractmetaphorcan supplementthe propertymetaphor
without replacingit; contractlaw furnishesa guide for evaluatingthe
way in which creatorscreate,in the same way that propertylaw furnishesa guidefor evaluatingwhat creatorscreate.
Applyinglegalrulesto creativeeffortsis a delicatetask,however,no
matterhow enlightenedthe rulesmightbe, for what the law protectsit
law is the idea that
also controls. The premiseof intellectual-property
and
should
be
creativity
encouraged knowledgesought. In actualitywe
have sometimesused the law to suppresscreativity and knowledge.
Along with admirationand awe, creativitycan also makeus feel envy or
fear, promptingus to attack people such as Galileo for disputingthe
183. See, e.g., Jerome Frank, Mr. Justice Holmes and Non-Euclidean Legal Thinking, 17
CORNELLL.Q. 568, 568 n.2 (1932) ("There is, of course, no such thing as 'pure' observation of
phenomena, 'pure' description of 'facts.' A 'fact' is a synthesis. An observation or description is
selective or interpretative.").
184. See, e.g., Richard Posner, WhatHas Pragmatism to Offer Law?, 63 S. CAL. L. REV. 1653,
1656 (1990) (offering a critique of pragmatism, but explaining "the pragmatists' stabs at defining
truth--truth is what is fated to be believed in the long run (Peirce), truth is what is good to believe
(James), or truth is what survives in the competition among ideas (Holmes)"); MargaretJane Radin,
The Pragmatistand the Feminist, 63 S. CAL.L. REV. 1699, 1707 (1990) (suggesting that pragmatism
and feminism share "the commitment to finding knowledge in the particulars of experience").
185. See, e.g., Pierre Schlag, Normativeand Nowhere to Go, 43 STAN.L. REV. 167, 173 (1990)
("Postmodernism questions the integrity, the coherence, and the actual identity of the humanist
individual self-the knowing sort of self produced by Enlightenment epistemology and featured so
often as the dominant self-image of the professional academic.").
186. See, e.g., Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94
YALE L.J. 1, 4 (1984) ("As a theory of knowledge, nihilism claims that it is impossible to say
anything true about the world" because "[a]nythinganyone says is as likely to be wrong as it is to be
right.... .").
187.
See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 269-70
(1987)
(criticizing reification insofar as it limits our thoughts to certain categories).

188. For an example of a sterile judicial dissection of a complex and impressive creation of the
human mind, see Lotus Dev. Corp. v. Paperback Software Int'l, 740 F. Supp. 37 (D. Mass. 1990)
(spending some fifteen pages on a description of a computer spreadsheet program in terms of binary
language, source code and object code, look and feel, user interface, and so forth, to the almost
complete exclusion of any reference to the human beings who created it and who use it).

1992]
COPY WRONG
551
word of God189or JamesJoyce for sayingthe unspeakable.190

We shouldnot turn hastilyto the law, expectingit to be moreconsistentor morewise thanwe are. Law has its limitsand cannotbe relied
on to providea simplesolutionto everyproblem. "Theoryexpressesour
values;it does not createor determinethem."191Giventhatour opinions
aboutplagiarismare contradictory-sometimeswe findit difficultto forgive, at other times we find it difficultto condemn;sometimeswe react
with embarrassment,
at other times with maliciouspleasure;sometimes
we despiseplagiarists,at other times we empathizewith the pressures
that led to their actions;sometimeswe greet accusationsof plagiarism
with credence,at othertimeswith suspicion-we shouldnot try to obliteratethese humancontradictionsby turningto legal reasoning'sillusion
of predictability.Hegel found "no precise principleof determination
available" to decide "to what extent . .. repetition of another's material
in one'sbook [is] a plagiarism"and concludedthat the question"cannot

be finallysettledeitherin principleor by positivelegislation.Henceplagiarismwould have to be a matter of honour and held in check by
honour."'92
A suitableforumfor dealingwith plagiarismmay thus lie outside
the legalsystem. Afterall, plagiarismis just one of the creativerisksthat
peopletake,and the meansof reducingtheserisksare not to be foundin
law. Throughthe very act of creationwe risk the inevitableimperfections that intervenebetweenthoughtand articulation.193Throughsharing our creations with others we risk being misquoted or
misunderstood.194 Throughthe processof publishingour creationsin
orderto makethemaccessibleto otherswe riskyieldingto alterationthat
189.
Cf GIORGIO DE SANTILLANA, THE CRIME OF GALILEO (1955).
190. Cf UnitedStatesv. OneBookCalled"Ulysses,"5 F. Supp.182(S.D.N.Y.1933)(booknot

obscene),aff'd, 72 F.2d 705 (2d Cir. 1934).
191. Singer,supranote 186,at 60. He continues:
Theoryis usefulto the extentthat it articulateswhatwe value. Sinceour valuesconflict,
legal theoriesexpress our competingvalues. We "draw a line" betweencompeting
principlesand then createa theoryto describewherewe choseto placethe line. But the
theorydoes not itself reconcilethose valuesor tell us whereto drawthe line. It cannot
becauseit is somethingwe madeup to expressthosevaluesandthe "line"betweenthem.
Id. (footnotesomitted).
192. HEGEL'S
PHILOSOPHY
OFRIGHT
? 69, at 56 (T.M.Knoxtrans.,1952). Two investigators
haverisento Hegel'schallengeby developinga computerprogramthatsearchesfor identicalthirtyletterstringsmeasuringthe similaritybetweentwo texts in unitscalled"millifreemans."
Richard
1448(1991).
Stone,CourtTestfor PlagiarismDetector?,254 SCIENCE
193. Cf., e.g., FRIEDRICH
BEYONDGOODAND EVIL ? 296 (Walter Kaufmann
NIETZSCHE,
trans.,VintageBooks 1989)(1886)("Weimmortalizewhatcannotlive and fly muchlonger--only

wearyand mellowthings!").
194. E.g., DONALD
LOOKING
ATPHILOSOPHY
269-70(1988)(in his familiarbutoften
PALMER,
misunderstood"opiateof the masses"statementabout religion,Karl Marx was referringto the
drug'smedicinal,not sedative,powers).

552
CALIFORNIA
LAWREVIEW
[Vol. 80:513
leaves us feeling that our work is no longer our own.195

When faced with creative risks, creators have the option of either
accepting them or avoiding them. Some authors find the continued risks
of creativity to be intolerable and withdraw from participationin the creative contract, declining to publish their works and thereby impoverishing themselves and all of us.'96 Others feel able to be more generous in
sharing their creations; Simone Weil wrote to a friend who had read her
notebooks,
You tell me that in my notebooksyou havefound,besidesthingswhich
you yourselfhad thought,othersyou had not thoughtbut for whichyou
were waiting;so now they belongto you, and I hope that afterhaving
been transmutedwithinyou they will one day come out in one of your
works.197
Aided by our understandingof copyright law, we can seek alternative ways to deal with the problem of plagiarism. Creators can seek help
from one another, individually or collectively. Some professionalgroups,
such as the Authors Guild or the National Writers Union, are active in
support of authors' rights and in devising accessible procedures through
which writers can resolve their grievances.198 Academic groups, such as
the American Historical Association, maintain sanctioning procedures.199 The pressure of public opinion may also be brought to bear
against offenders,even in the absence of any possibility of sanction, when
people who become aware of plagiarism refuse to keep silent.200
Aided by our understandingof plagiarism, we can continue to work
toward a more just law of creativity. The law is itself a product of the
human creative process-shaped by centuries of tradition, renewed by
the infusion of the new and the rediscovery of the old, continually
rethought, reanalyzed, and reconstructed,as powerful and moving as any
other work of literature. We can mold it to our needs, neither making
valid actions too difficult to sustain nor encouraging excessive literary
litigiousness. In so doing, we should not look to faulty metaphors to
resolve our disputes. We must not rely on catchphrases like "intellectual
property" to simplify a problem-instead, we should try to see the prob195. Cf, e.g., A. SCOTT
EDITOR
OFGENIUS297-336(1978) (events
BERG,MAXPERKINS:
leadingto the breachbetweenThomasWolfeand his long-timeeditoroverWolfe'sconvictionthat
editorialchangeshad beenforceduponhim).
196. J.D. Salinger"hasnot had anythingpublishedsince 1965"andhas no plansto do so but
continues"to writeregularlyfor his own pleasure."EdwinMcDowell,Publishing:VisitwithJ.D.
Salinger,N.Y. TIMES,
Sept. 11, 1981,at C24. See generallyJohn Romano,SalingerWasPlaying
June3, 1979,? 7 (BookReview),at 11.
OurSong, N.Y. TIMES,
197. SIMONE
ANDGRACExiii (EmmaCraufurdtrans.,ARK Paperbacks
WEIL,GRAVITY
1987)(1947).
198. See ENCYCLOPEDIA
OFASSOCIATIONS
1144,2302 (DeborahM. Bureked., 1992).
199. See Bowen,supranote 25, at 59.
200. The AmericanHistoricalAssociationdeclinedin at least one instanceto sanctionan
offenderwho had alreadyreceivedsubstantialbad publicity.Id.

1992]
COPYWRONG
553
lem in its complexityand trust ourselvesto reacha just solution.201 As

we try to facilitateand encouragethe creativeprocess,whetherthrough
the law or outsideit, we must continuallywork to accommodateboth
processand result,both creatorand audience,both propertyand contract,both ownershipand communication,both simplicityand complexity, both flexibilityand consistency,both metaphorand reality,andboth
creativityand the law.
201. William James, according to Radin, characterized those who "have the temperamental
wherewithal to live with incompleteness, openness, uncertainty, skepticism, and the nonideal" as
"tough-minded." Radin, supra note 184, at 1714.


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California Law Review, Inc.

Copy Wrong: Plagiarism, Process, Property, and the Law

This content downloaded from 202.125.102.33 on Sat, 22 Jun 2013 04:44:50 AM

Copy Wrong: Plagiarism, Process,

This content downloaded from 202.125.102.33 on Sat, 22 Jun 2013 04:44:50 AM

This content downloaded from 202.125.102.33 on Sat, 22 Jun 2013 04:44:50 AM

Thepoet'seye, in a fine frenzyrolling,

In their ongoing effort to set themselvesapart from other living

See RICHARD WINCOR, LITERARY PROPERTY8-9 (1967).

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. ."7 Whether creation is

perhapsthe act of assemblingsomethingthatdid not formerlyexist,or of

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failedto add anythingof valueto the copiedmaterialand havingreaped

Shakespeare,Ben Jonson,AndrewMarvell,and AlexanderPope among

See ALEXANDER LINDEY, PLAGIARISMAND ORIGINALITY 62-72 (1952).

15. Id. at 72-84. See generally HAROLDO. WHITE,PLAGIARISM

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they borrow,turningit into somethingthat is their own.17 The only

Cambridge Univ. Press 2d ed. 1967) (4th ed. 1713).

30-31, 259, 335, 466 (1981).

Letter from F. Scott Fitzgerald to Robert Kerr (June 1924), in CORRESPONDENCEOF F.

143 (Matthew J. Bruccoli & Margaret M. Duggan eds., 1980).

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the disciplinarybodies of eitherthe school24or the appropriateprofessional organization.25

A48 (consequences of academic plagiarism). See generally Ralph D. Mawdsley, Plagiarism

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rism31but also of otherethicalbreaches.32Evena falseaccusationstains

detected in borrowing, he will be suspected of plagiarism ever after.'" (quoting WILLIAM

32. See Peter Shaw, Plagiary, 51 AM. SCHOLAR

Shaw, supra note 32, at 332. See generally

SISSELA BOK, LYING: MORAL CHOICE IN

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For poets, law makes no provision....

-Jonathan Swift,On Poetry:a Rhapsody39

Evenwithoutbeingableto articulatea precisedefinition,manypeople findit easy to recognizeplagiarism-like pornography,they know it

MALLON,supra note 16, at xi.

42. Id. at xiii.

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creditingthe originalcomposer.45In fact, most courts using the term,

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attempts to treat plagiarism as a common-law tort remain aberrations.50

55. 17 U.S.C. ?? 302-305(1988).

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cial ownerof an exclusiverighthas standingto sue for its infringement.61

Plagiarismis not necessarilycopyrightinfringement,nor is copyright infringementnecessarilyplagiarism.The two conceptsdivergein

62. Id. ?? 502-505.

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what is at stake in plagiarism-the creative process-and what is at stake

ST. ONGE, supra note 10, at 53 (quoting the MLA HANDBOOK).

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plagiaristfoundit in orderto concealrelianceon the secondarysource.7'

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admittedto havingconsulteda nonfictionworkon the sameperiodand

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old to fall underthe copyrightstatute,82was writtenby a government

The connectionof the author'sname with the work invokes the

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theirbooks89-butauthorswho findthis arrangement

, scholarship, or research."92 By making fair use of a

workin theseways,the usersaddsomethingto the materialby placingit

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determinationof fairuse: "(1) the purposeand characterof the use ... ;