BY:Neil J. Rosini, Michael I. Rudell
(Originally published in the Entertainment Law column of the New York Law Journal, February 23, 2007.)
Accusations of plagiarism – the appropriation of another’s creative output with neither permission nor attribution – have garnered much recent attention in literary, journalistic, and academic circles. One such controversy involved the acclaimed English novelist, Ian McEwan, who was accused of plagiarizing historical details from another author’s book in his award-winning novel, Atonement. In this article we will review the circumstances surrounding that accusation as well as the differences between plagiarism as an ethical and professional offense, and copyright infringement, which is a violation of law.
The McEwan Issue
Mr. McEwan was accused of taking facts and phrases from a historical memoir, No Time for Romance, by Lucilla Andrews, who died last October. A number of famous authors, who The New York Times said had “done the same thing themselves,” then leapt to McEwan’s defense.1 Thomas Keneally wrote, “If it is sufficient to point to a simultaneity of events to prove plagiarism, then we are all plagiarists, and Shakespeare is in big trouble from Petrarch, and Tolstoy stole the material for ‘War and Peace’.”
McEwan cited the Andrews memoir as a source in an author’s note at the end of Atonement and went out of his way to praise her publicly, so lack of attribution in this general sense was not an issue. Rather, criticism focused on similarities of phrasing (which McEwan said were inadvertent) in several passages concerning medical treatment of wounded soldiers in World War II.
Among other examples, Ms. Andrews, who had served as a nurse in World War II, wrote: “Our ‘nursing’ seldom involved more than dabbing gentian violet on ringworm, aquaflavine emulsion on cuts and scratches, lead lotion on bruises and sprains.” On the subject of training nurses using life size dolls, she said: “…nurses had learnt to blanket bath [using] Mrs Mackintosh, Lady Chase and George, a baby boy of convenient physique to allow him to double as a baby girl.” On the relentless attacks by German forces, she wrote: “We’d start building a runway in this field, see, but before we’d half the job done, along comes Jerry dropping his load, so we moved back, starts another in another field and back comes Jerry. We got shoved so far back we run out of fields, and seeing as you can’t build runways on the sea, here we are.” Speaking of adjusting bandages at the request of a seriously wounded soldier: “‘Bit sort of tight, Could you loosen it’…Then as I did not think it would do any damage to loosen the gauze bows, I…undid the first and, as the sterile towel beneath slid off and jerked aside the towel above, very nearly fainted on his bed. The right half of his face and some of his head was missing. I had consciously to fight down waves of nausea…”
McEwan wrote in Atonement: “In the way of medical treatments, she had already dabbed gentian violet on ringworm, aquaflavine emulsion on a cut, and painted lead lotion on a bruise.” “But mostly she was a maid … practising blanket baths on life-size models Mrs Mackintosh, Lady Chase, and baby George whose blandly impaired physique allowed him to double as a baby girl.” “We’d get going on the job, then Jerry comes over and dumps his load. We drops back, starts all over in another field, then it’s Jerry again and we’re falling back again. Till we fell into the sea.” “‘These bandages are so tight. Will you loosen them for me a little?’ She stood and peered down at his head…as she loosened it, the heavy sterile towel beneath it slid away, taking a part of the bloodied dressing with it. The side of Luc’s head was missing…she waited for her nausea to pass.”2
In his new hardcover, The Little Book of Plagiarism,3 Seventh Circuit Judge Richard A. Posner surveys the professional and ethical dimensions of plagiarism and the matter of defining it. Applying Judge Posner’s measuring stick, the question of whether McEwan’s taking amounted to a moral stumble depends in large part on the expectations of his audience.4 Did this use constitute a false claim that the wording was “original with him” causing his audience “to behave otherwise than it would if it knew the truth”? Or would readers expect McEwan to sharpen the accuracy of his writing by borrowing liberally from memoirists with first-hand knowledge? Writers who defended McEwan implied that readers should take such borrowings for granted. Novelist Keneally said, “Fiction depends on a certain value-added quality created on top of the raw material, and that McEwan has added value beyond the original will, I believe, be richly demonstrated.”5 And according to the New York Times, “the authors cheerfully admitted to plundering other work – historical writing, autobiography, primary-source documents, other novels – for their own books, and said that such research was the lifeblood of any novel that depended on period detail.”6
Even assuming McEwan’s readers knew about this authorial habit, Judge Posner’s analysis of plagiarism requires two further assessments: whether there has been harm to the person who is copied, whose career and reputation are not advanced when credit for their work is given to the copier; and whether there has been harm to the competitors of the copier, who must compete with someone who cuts corners through liberal takings.7 To address the first prong, one must consider whether McEwan gave sufficient credit to Andrews in his acknowledgements. As for the second prong – the question of harm to competitors – the outpouring of sympathy for McEwan by fellow novelists seems to provide the answer.
In a recent op-ed piece for The Wall Street Journal, UCLA law professor, Eugene Volokh, observes that “Plagiarism is easy to condemn but often hard to define.”8 His article says that the rules of professional ethics for novelists lie somewhere in between those of academics and journalism. Novelists “who strive for factual accuracy must…remain free to closely paraphrase the factual accounts of others” short of taking “colorful descriptions.” Academics, in contrast, labor under the “most stringent obligations” of attribution, to avoid the twin “sins” of falsely claiming originality and depriving other scholars of credit. These rules arise both from expectations of performance within the profession as well as the “long and heavily footnoted format of academic books and articles [which] makes [attribution] easy.” (And even within academia, the rules are different for those who write textbooks, which are accepted as unattributed compendiums of others’ work.) On the other hand, journalists writing for newspapers, much less for TV news, have no space for footnotes and their audiences do not likely assume that their recitations of background facts are based on personal review of primary sources. Still, as the Jason Blair scandal at the New York Times illustrated, journalists who purport to have written factual expression purloined from others, will cross the ethical divide.
(The rules also are different in the legal profession – where, as Judge Posner notes, “originality is not highly prized.”9 Lawyers freely incorporate the writings of other lawyers in their contract boilerplate and briefs; judges incorporate in their decisions text from lawyers’ briefs and from their clerks’ memos. Although there is no attribution, there is no disapprobation – perhaps owing to a profession-wide search for both efficiency and Truth. Plagiarism by one law review author of another’s article, however, would be condemned under the same standards that apply to academics.)
Professor Volokh found McEwan “[l]ikely not guilty” of plagiarism because he did not take “another’s original expression without specific notation,” and his acknowledgement of Andrews as the source “appears to have been prominent enough.” Charles Isherwood in the New York Times, suggested that the published fuss over “[a] few pedestrian strings Ms. Andrews used to describe her experience, reworked perhaps a little too minimally by Mr. McEwan” was “wearying.”10 On the other hand, Jack Shafer wrote in Slate.com: “As a long-time magazine and newspaper editor, I’d have no trouble firing McEwan for writing as he did if he worked for me….He loved the specificity of [Andrews’s] prose, bits of her dialogue, and even the names of the life-size models in her book…so much that he pushed them through his computer almost unchanged.”11
The issue of legal liability under copyright law lies apart from professional standards and has its own set of rules. Of course, works in the public domain can be freely reproduced without infringing copyright (though professional ethical standards mentioned above might be crossed in the absence of attribution). But even during the term of copyright protection, in the United States the facts found in news stories, biographies, and historical works, may be copied without infringing anyone’s rights.12 This is because copyright affords authors a monopoly over literal expression, barring word for word takings and close paraphrases not defended by fair use; but facts are freely accessible. And in similar fashion, no author can monopolize ideas, including an interpretation of facts, for to do so would frustrate the basic purpose of copyright: the “intellectual advancement of mankind” through free access to ideas.13
This principle was explored by the Second Circuit in its classic 1980 decision, Hoehling v. Universal City Studios, Inc.14 The plaintiff in that case wrote Who Destroyed the Hindenburg?, a “factual account” based on his “exhaustive research” of investigative reports, published articles and books, and his interviews with survivors. Hoehling concluded that explanations proffered by others for the explosion of the Hindenburg zeppelin were unconvincing, and setting forth his own interpretation of the facts he uncovered, he named a crew member with the job of “rigger” as “the most likely saboteur.” Another author, Mooney, consulted Hoehling’s book and in a more literary reworking that wove together “a number of symbolic themes,” he blamed the same crew member for planting a bomb. Universal produced a film loosely based on Mooney’s book, and although it followed a distinct “Grand Hotel” formula, it also blamed a rigger for planting a bomb, albeit with a different name. Hoehling sued.
Hoehling’s principal claim that both Mooney and Universal copied the essential plot of his book was soundly rejected by the court, which affirmed summary judgment for the defendants. The court held that “where, as here, the idea at issue is an interpretation of an historical event, our cases hold that such interpretations are not copyrightable as a matter of law. . .” The court declared that “broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots,” which could not be monopolized, and the same reasoning applied to the plaintiff’s claim “that a number of specific facts, ascertained through his personal research, were copied…” And while acknowledging that “verbatim reproduction of another work…even in the realm of nonfiction, is actionable as copyright infringement,” the court found “that all three authors relate the story of the Hindenburg differently.”
What about the issue of attribution – that core element of “plagiarism” in academic circles? There was no specific treatment in the decision, but the court rejected Hoehling’s claims based on the common law of unfair competition (which includes the tort of reaping where one has not sown). The court said, “Where, as here, historical facts, themes and research have been deliberately exempted from the scope of copyright protection to vindicate the overriding goal of encouraging contributions to recorded knowledge, the states are pre-empted from removing such material from the public domain.” As Nimmer on Copyright confirms, this is still the prevailing rule “regardless of whether the state law in question labels the claim ‘misappropriation,’ ‘unfair competition’ or ‘palming off’,” absent additional elements, like fraudulent misrepresentation or breach of fiduciary duty.15Moreover, the fair use defense – which applies to limited borrowings of copyright-protected material (as opposed to unprotectable facts, ideas and themes) – might not be available in the unfair absence of proper attribution.16
When literal copyright-protected expression is taken without proper attribution, legal liability and professional liability for academic, literary and journalistic plagiarism fall under the same shadow of disapprobation. However, there can be takings of facts and ideas that do not attract legal liability, but still result in accountability for copiers under professional rules condemning plagiarism.
Did novelist McEwan plagiarize? That question is best left to his professional cohorts, and the answer is debatable. Did his writing infringe copyright, unmitigated by fair use? The answer to that question will not likely come in the form of a judicial decision. Before her death, with regard to the similarities between the two works, Lucilla Andrews wrote: “I don’t give a damn.”17
1 Lyall, Sarah, “Novelists Defend One of Their Own Against a Plagiarism Charge in Britain,” New York Times, December 7, 2006, Arts, at 1.
2 Excerpts from Shafer, Jack, “What Did Ian McEwan Do? Nothing wrong, say the big-shot novelists,” posted December 8, 2006 (http://www.slate.com/id/2155175/pagenum/2, sidebar at http://www.slate.com/id/2155175/sidebar/2155159/), which in turn drew from the British newspaper, The Mail on Sunday.
3 Posner, Richard A., The Little Book of Plagiarism, Pantheon Books, a division of Random House (2007).
4 Posner, at 106.
5 Lyall, supra.
6 Id., at 9.
7 Posner, at 106-107.
8 Volokh, Eugene, “Plagiarism and ‘Atonement,'” Wall Street Journal op-ed piece, December 13, 2006; reproduced at the author’s site (http://vookh.com/posts/1166035475.shtml).
9 Posner, at 15.
10 Isherwood, Charles, “Her Life, His Art, Your Call,” New York Times, December 3, 2006, Week in Review, at 1, 3.
11 Shafer, supra.
12 See generally, Nimmer, David, Nimmer on Copyright, Section 2.11 [A], [B].
13 Id., at Section 13.03 [B] .
14 618 F.2d 972, 974 (2d Cir. 1980).
15 Nimmer, Section 1.10[B][f] (iii); and 1.10[B][b](b), (c).
16 See, Posner, at 16.
17 Cowell, Alan, “Eyebrows Are Raised Over Passages in a Best Seller by Ian McEwan,” New York Times, November 28, 2006, Arts, at 1.