In the comments on the last post I made about copyright, onereasonableperson asked about plagiarism and how that fits into all of this. For example, can you plagiarize an idea or is it only plagiarism when you copy someone’s exact words (which is generally where copyright comes into play).
I had my own gut feelings on the matter, which is that you really need to be copying words not just taking an idea and putting your own riff on it, but I also knew that there have been some pretty big scandals that alleged plagiarism that weren’t for exact word-by-word copying. So I went digging.
(And I’m hoping that Dave Higgins, who is an actual lawyer, will jump in on the comments here with some further insights. When in doubt, listen to the lawyer.)
Here’s what I came up with:
Plagiarism is not a legally defined term. It is an ethical and moral issue and generally defined within the context of an institutional code of ethics. For example, in academic writing using the ideas of another academic without acknowledging their contribution is a big no-no. Hence the large number of footnotes and citations in that kind of writing.
(See Wikipedia.)
Because it’s an ethical issue not a legal issue, the definitions of plagiarism do in fact include ideas. Here’s Merriam-Webster’s definition of what it means to plagiarize:
“to steal and pass off (the ideas or words of another) as one’s own : use (another’s production) without crediting the source” or “to commit literary theft : present as new and original an idea or product derived from an existing source”
The problem is, this is easier alleged than dealt with, especially in trope-heavy genres like romance or LitRPG. When does it move from following a standard progression of story elements to essentially copying the creativity of another?
When this question came up on the other post, my immediate thought was that Cassandra Clare had been sued at one point by Sherrilyn Kenyon for “plagiarism” for essentially too much similarity in terms of story elements between their series. I found an article about it in Slate that you can see here.
But when you go look at the actual court filing, which is posted here, you’ll find that the actual lawsuit alleged copyright and trademark infringement that impacted the value of Kenyon’s property (goodwill).
So while the ethical allegation was one of plagiarism and that’s what showed up in headlines when the case was filed, the legal allegation had to be for copyright and trademark infringement because those are the legal standards that come into play.
And, to add to this point, you can see in this post here on Clare’s website that the copyright portion of the case was eventually dropped from the suit (likely because there was no word-for-word copying that occurred, but that’s just my personal speculation).
Also, according to that post, the trademark portion was eventually settled. In other words, it wasn’t litigated and so can’t be used in any way to show a point where common elements between novels or the marketing of those novels becomes grounds for a trademark violation.
You can see this copyright vs. plagiarism issue play out again in the recent situation involving Cristian Serruya. Here’s a post where Courtney Milan (a highly competent lawyer in addition to being a talented author) tells other authors how to address the situation.
Note that the first item recommends making a report of an ethics violation to a membership organization (RWA) where Serruya is a member. But that the second item goes back to copyright.
In the Serruya case there was word-for-word copying of other’s works, so that made it very clean.
If there hadn’t been word-for-word copying then I suspect that would’ve made the legal basis for challenging her very difficult, but she would’ve still been crucified in the court of public opinion because authors and readers don’t appreciate seeing someone take someone else’s work and try to pass it off as their own.
I remember a situation a few years back where someone had taken an erotic short story and rewritten it in their own words, but kept everything else about the story the same. (I honestly thought the rewrite was better, but that’s just me.) It wasn’t a copyright violation. It wasn’t a trademark violation. But it didn’t matter because it upset a large pool of authors who made it their mission to go after that author until the book was taken down. (And the author name probably permanently blackballed.)
There was another situation a few years back related to an author who’d done very well in urban fantasy and then someone came along and published a book that basically copied the intent and format of their blurb, named the main character after the other author, and copied elements of the other author’s book. Once again, lots and lots of uproar over that one. It didn’t destroy the second author’s career, but it certainly blackened their name. I looked just now to see if there was a lawsuit filed and am not finding anything, although I know the first author did discuss doing so and that their publisher’s legal team was involved but I can’t even find discussion of it now, so I assume that one was settled as well.
Heck, I’ve run into this one myself where someone took a blurb on one of my books and basically switched the words around just enough to not be copying what I’d said while still saying the exact same thing. If I’d had a big, voracious following for that book it would’ve been ugly for the person who did that. Because I didn’t they just got the side-eye from me.
So bottom line for an author: Legally it’s going to come down to copyright, trademark, or, as Dave mentioned in the other post, moral rights. Ethically and in the court of public opinion it’s probably best to find your inspiration from a wide enough variety of sources that your book doesn’t look like a thinly veiled copy of another’s work.
M.L. Humphrey 
While M is correct that I’m a lawyer, I’ve only practised in a few areas of UK law and I’m not your lawyer; so, my comments aren’t legal advice. If you have concerns about your situation, speak to a suitable lawyer in your jurisdiction.
As the previous post said, copyright protects a tangible expression of an idea not an idea itself. However, the edges on this are blurry. For example, taking a story and replacing every mention of “Simon” with “Symon” would technically make it a different tangible expression; however, it’s almost certain that a Court wouldn’t consider that sliver of difference sufficient; conversely, Twilight started as a vampire version of 50 Shades so copying a story relatively closely isn’t always a violation. Somewhere between those points, technical similarity becomes a copyright violation.
However, some other rights (Trade Marks, for example) turn not on technical copying but rather on whether there is a risk of confusion: for example, if I market a soft drink called Dava Cola I’d be fine, but if I package it in red cans with white swooping writing, Coca Cola could quite reasonably argue people looking for their product might pick up mine instead. So, the copying of an idea might infringe IP if it could confuse customers: for example, Games Workshop argued that “Space Marines” were so symbolic of their Warhammer 40K universe that a story about marines fighting in space in armoured suits would be mistaken for part of their fiction range by their customers; they were ultimately unsuccessful, but their argument was strong enough the Court didn’t refuse to even consider it.
So, the safest course is to put your own spin on genre tropes; this will not only protect you against accusations of infringing IP but will also make your book more than a generic example of the genre.
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Well said, sir. Thank you.
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First of all, thank you so much for responding so quickly and for writing this post. I found it well reasoned and easy to follow.
I think, going back to my original thoughts, that I was both right and wrong. To some degree, it is legally, morally, and ethically okay to “copy” certain ideas and elements as a fiction writer. Otherwise, once Iron Man was created, no other author could have ever had a superhero use a powered suit, which is just silly.
The real issue seems to be, “Is there enough differentiation between your work and the original work?” Is your superhero basically Iron Man but wearing, say, purple and gold armor instead of red and gold? If so, you’ve plagiarized it. If, however, your guy in a powered suit doesn’t use the same power source, doesn’t have the same motivations, and isn’t really copying anything but the idea of using a powered suit to generate superpowers, you’re probably going to be okay in the court of public opinion.
Thus, the blogger that I linked to was probably right in his assertion of plagiarism, assuming the closeness between the two books were really as straightforward as he made out.
Thanks again for helping me wrap my head around this. Let me know if you disagree with my comment above.
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I think what you said sounds right to me, too. I always bristle a bit when someone throws around the p word because it isn’t clearly defined, but there are definitely times when someone needs to be called out for taking it a little too close to the line.
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