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Plagiarism: Much Ado About Something By Neil Wilkinson

It is a huge problem, though the philosophical underpinnings of why are all over the map. Educators lament it. Schools toss people out for it. Yet it continues. Jayson Blair was fired by The New York Times for it. Stephen Ambrose admitted to it. Janet Dailey was called on it by Nora Roberts. Alex Haley paid Harold Courlander a six-figure sum for having purloined Mr. Courlander’s book The African and using it as the basis for the wildly successful Roots. A recent AOL™/ Google™ search on the word “plagiarism” yielded 42,601 matching sites.

There is no doubt that plagiarism is with us. It is offensive in the extreme to academia. Few of us are without memory of student codes of conduct, pledges signed at the ends of tests or research papers asserting that our work is our own. Penalties for infractions are spelled out in great detail in college and university course catalogs, on websites, and in student handbooks. Honor courts are convened where a student can defend him or herself, as was done a couple of years ago at the University of Virginia, where a suspicious professor compared work of some one hundred and sixty-eight Wahoos. Convinced that they were guilty of the academic equivalent of a capital crime, the professor brought them before the University’s honor panel. Once there, students were afforded the very minimum our federal and state constitutions mandate for anyone charged with any infraction, civil or criminal, notice and an opportunity to be heard. Some reached plea agreements with the honor court, took their lumps, and moved on. Some fought the charges, as is their right to do, some prevailing, some not. And close to a dozen others entered an insanity plea. That’s right. You read that correctly; an insanity plea.

We need not dwell on this any longer, except to say, that as I recall, Janet Dailey was excoriated in the press for having offered up just that sort of reason for plagiarizing the work of Nora Roberts. Stephen Ambrose was widely quoted as saying that the pressures of producing things for Tinsletown led him astray. Jayson Blair, and before him, Stephen Glass, was fired amid a great embarrassment and “gnashing of teeth” (See Holy Bible). Pulitzer Prize winner Rick Bragg, simply quit The New York Times when accused of submitting dispatches written by a freelancer to whom not a whisper of credit had been given, and took the engineer’s job on the very short, but profitable, Jessica Lynch gravy train. Jayson Blair and Stephen Glass wrote books, and Glass made his into a movie, whining all the way to the bank about how tough things were for him. In many cases, as Amy Alexander explores the notion that (among other issues not on point here) in her article in the March 22, 2004 issue of Africana e-zine Reading Between the Lines: Who’s Sorry Now?, the penalties for plagiarism aren’t really all that stiff. At least, it would seem, not at the higher levels.

In the cases cited here, and many more than we have room or time to discuss here, there is strong evidence toward, or even outright admission of, the offenses charged. But what happens when an author is wrongly accused of the sin of sins in professional writing? What protections exist? Are there any?

Let’s suppose you write features and other articles freelance or for smaller regional publications. Now let’s suppose that you get wind of an interesting story, human interest, an odd event, the quirky commemoration of an obscure event. You employ your regular drill, asking questions, making contact, finding out who knows what, where and why. Then you write an article, all on your own, no outside sources, just you and the subject, and your observations, insights, opinions, and the like. It is submitted and published. Then suppose that you learn, through the tirade of an angry editor who put the story in print, that an article about the same subject appeared in another publication many months before. The editor tells you that he has received communication from the offended publication that you lifted the article and did not cite it, and that his publication will no longer print your work, and that, despite all your protests and your production of every line you put in your notes, drafts, and the like, they will not make any effort to defend you or themselves. Oh, and your rent is due.

What can you do? Sadly, there is no central board of journalistic integrity, nor any arbitration panel for the prevention of plagiarism to which you can appeal. Apart from a code of ethics that is purely volitional, there is no enforcement body to ferret out plagiarists and punish them, or to exonerate the innocent. Nor is there any board to make spineless editors take a stand.

Emmett Tyrell writes in The Dark Times at The New York Times Grow Darker (May 15, 2003 – Townhall.com ), that fine journalists were tainted by the Jayson Blair scandal, and that “the real culprits [in The New York Times scandal] are the editors, or at least some of the editors.” Isn’t that the function, or at least one of the functions, of an editor? To know when potential conflicts between stories might arise? On paper, maybe. In reality, a heavy burden is placed upon the writer to ensure that he or she does not inadvertently include an uncredited source in a piece of work. And, the burden grows heavier as plagiarism increases and intellectual property law strengthens exponentially year to year.

In law, a central element of every offense, civil or criminal, is intent. The accused has to have intended to act as he or she did, even if the final consequences of the act are not readily foreseen. In contrast, because plagiarism is a form of fraud, it requires a sort of hyper-intent, scienter is the legal Latin term for it, meaning, of guilty mind. That is, to commit the act of plagiarism an individual has to knowingly and with the intent to pass the work off as his or her own, take steps to purloin the work, conceal or obfuscate its origin, and put a byline on it. This may be hard to prove in law, but the rumor mill requires little more than saying something to make it so, or at least have the consequences of being so.

To be wrongly accused of such an activity places a heavy burden on a writer. For a wronged writer, one who has seen, or could see, his or her livelihood evaporate, actions for defamation may be appropriate, remedies for which are remuneration, retraction, and ideally, repair or restoration of reputation. Defamation actions can be effective if an editor, especially after having been shown reams of material supporting the writer’s innocence, nonetheless repeats or perpetuates the assertion that a writer committed plagiarism. In an instance where the distant publication, with reckless disregard of the truth of its assertions, states to third parties that it has been plagiarized, the writer may have a defamation action against that entity, particularly if the basis in fact for having made the accusation is weak, non-existent, or could have been easily checked out beforehand.

Even then, things are not easy. There is little available to a writer to force an editor or publisher to speak up for or defend her. In the end, little is left but litigation, a bumpy, uncertain, and expensive process, even when you prevail.

Whoever said, “An ounce of prevention is worth a pound of cure” (Ben Franklin, maybe, though he did not cite his source) was not far off the mark. Inasmuch as nearly every newspaper, magazine, or periodical has an Internet component, it is wise and relatively easy for any writer to do a little web browsing to see what might have been written on a subject in which they have an interest. If for no other reason than the current climate in intellectual property makes anyone who puts anything in print a potential defendant in an infringement action, or the target of an unfounded accusation of plagiarism. There are plenty of things a writer might want to see following his or her name, defendant or plagiarist should not be one of them. That said, there is an inherent risk of accusation of plagiarism, infringement of copyright, and so on that every writer takes. It has, unfortunately, become naive in the extreme to think that “I haven’t done anything wrong” will carry the day for you. As an veteran lawyer once told me, when I equally naively assumed the same thing on behalf of a client, “Any mental defective with five bucks can ruin your life.” A somewhat cynical point of view, I’ll grant you, but all too true, especially in this arena.

This article is not intended to offer legal advice, that is what you hire your attorney to do. But it is meant to convey that writers should undertake whatever actions they deem necessary to protect themselves, preferably before the fact, but certainly after. As there is no official or governmental regulatory body to which a writer may complain, nor any set of rules the violation of which meets penalties with real teeth, the writer must contend with a pretty rough and tumble world, and many times, alone.

Neil Wilkinson is a practicing attorney and holds a Master’s Degree in Professional Writing from Kennesaw State University (KSU) in Kennesaw, GA and Master of Laws (LL.M.) from the University of Georgia School of Law. Neil is also an adjuct professor of Intellectual Property Law in the MBA program at the KSU Michael Coles School of Business. He has published articles in legal and general interest publications, as well as poetry and short fiction in regional publications. With two novels completed, A Day in the Life of A Reasonable Man, a picareque farce involving a fussy, overly-grammatical everyman who finds himself the plaintiff in a lawsuit against the most powerful televangelist in America, and Laughing Academy, a psychological/legal suspense novel, Neil continues work on other novels in various states of construction. Currently, he is seeking literary representation.