Copyright vs. Plagiarism

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.

A Little Lesson on Copyright

I just saw someone who should know better ask if a work becomes public domain (i.e., available for anyone to publish and make money from) if an author markets that work without registering the copyright with the copyright office.

NO.

I put that in large, bolded letters because that comment was horrifying to me. That’s the kind of comment that leads to an author stealing another author’s work and not understanding what they’ve just done.

So let’s talk copyright real quick.

First, at least in the U.S., the official source of information on this is the U.S. Copyright Office. Here’s a nice FAQ they have available. If you are a creator of any sort of artistic work, read it. If you intend to sell any sort of artistic work, read it. If you want to share someone else’s artistic work, read it.

So, let’s summarize a few of the answers available on that site:

  • A work is under copyright protection as soon as it is “fixed in a tangible form that is perceptible either directly or with the aid of a machine or device.”
  • Copyright covers “original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”
  • Copyright registration is voluntary. A work is protected whether you register the copyright or not.
  • You don’t even need to use a copyright notice on your work to have copyright protection.
  • But if you want to bring a suit for copyright infringement, you do need to register your copyright.
  • Depending on when you register a work you may be eligible for statutory damages and attorney’s fees if someone infringes your copyright.
  • The U.S. has reciprocal relationships with a number of countries to honor one another’s copyright registrations, but that is not universal. There are many countries who do not acknowledge copyright protection.
  • If someone reproduces, distributes, performs, publicly displays, or makes a derivative work of someone else’s copyrighted material without permission, that is considered an infringement of the original author’s copyright.
  • There is a fair use exception to copyright infringement. It is “permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.” (However, be very careful with song lyrics. There is no number of words that are deemed safe. It’s based on context.)
  • Works do eventually fall out of copyright and into what is called public domain. When a work is in the public domain others can publish it or write derivative works based on it. A work published today would be under copyright protection for at least 70 years and likely longer than that.
  • If you want to protect a name, title, slogan, etc. that does not fall under copyright, but may fall under trademark protection.
  • When you register a copyright that registration information is publicly available. You also have to submit a copy of the “best” version of the item that is available at the time.
  • If someone infringes your copyright you can file a civil suit against them. Also, “in cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.”
  • “Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. “

In summary. Don’t mess with another person’s creative work. With respect to writing, that means don’t copy someone’s blog, don’t take sentences they’ve written and use them in your own work as a “homage” if you don’t have permission, don’t steal their book and publish it as your own, and don’t download books off some sketchy site where someone is “sharing” their version of a book. All of that is a big no-no.

Just because someone doesn’t choose to go through the time and expense to officially register their work does not let you off the hook.

Same goes for photos you find on the internet. If you didn’t take the photo or arrange to license the photo for your own use, not yours to use.

If you’re a writer, read through that FAQ I linked to above. And if you really want to dig in buy The Copyright Handbook from NOLO.

A Quick Excel Copy & Paste Trick

It’s been a while since I shared an Excel trick on here and this is one that didn’t make it into the books although I do find it useful.

As a refresher: If you want to copy an entry and paste it into other cells, an easy way to do so is to click on the cell with the information you want to copy, use Ctrl + C, then highlight the cells where you want to paste that information and use Ctrl + V or Enter.

Another option if the cells where you want to copy the information are located next to the cell with the information you want to copy is to highlight the cells you want to copy, left-click on the bottom right corner and drag down or drag to the right.

(If there’s already data in other columns and you want to copy downward you can just double left-click instead of click and drag.)

I tend to use the click and drag option a lot, but it fails me sometimes, especially when I want to copy date information because it gets too clever.

For example, in a lot of my sales tracking spreadsheets I add a column for month and a column for year and then need to copy that down however many sales entries there are for that vendor for that month.

When you click and drag with month and year information, Excel treats the data as a series by default and does the following:

Excel Copy Paste Default

I wanted every entry to be April 2019, but Excel in its wisdom advanced the month and the year by one for each row.

It turns out you can fix that by clicking on the Auto Fill Options image at the bottom right corner and changing it from “Fill Series” to “Copy Cells.”

Auto Fill Options

You then get what I actually wanted:

Excel Copy Paste 2

Another way to copy the exact same value to multiple cells in Excel is using Ctrl+Shift+Enter. Highlight all of the cells that you want to have a specific value, then enter that value in the first cell of the highlighted range, like so:

All Cells Highlighted

Then instead of using Enter, use Shift+Ctrl+Enter. The value you input into the first cell will be copied to all of the highlighted cells.

It only works for one value at a time, though. So in my scenario above I’d have to do the month first and then have to do the year separately.

Both of these tricks work in Excel 2013, which is what I’m working in, so I’d assume they work in all versions of Excel beyond 2013 as well. They may or may not work in prior versions of Excel.

Edited to add that now through June 29, 2019 you can get a 15% discount on any of the ebook versions of the Excel Essentials titles on Barnes & Noble by using promo code BNPEE15.

 

Save Me From Myself

First off, an excellent (IMO) post by KKR to share: Business Musings: Outrage Fatigue which kind of dovetails with where I am mentally this morning.

I just walked away from writing a response to someone who had posted on a writers’ forum and is clearly not all there. (Anytime someone posts incredibly long posts with lots of CAPITAL LETTERS and exclamation points and rants about how the world or someone else doesn’t get them, walk away. That is not a discussion to have because that person is not operating in the world you are.)

This person had made a throw away comment about not being able to check out their competitors’ books without buying an ereader and (heaven forbid) paying for the books. I was going to point out that, at least with my books, they should be available through the library. (Sometimes you have to request it with the library but the option is there to do so, both in ebook and print. I’ve had libraries in New Zealand pick up my fiction, for example.)

But then I realized that the ten minutes I was taking trying to frame my answer to this person in a way that wouldn’t trigger another long inane screed was time I was wasting and could be spending elsewhere, like on writing the next book. So I walked away.

This is a frequent occurrence for me. I see a conversation I could be a part of and even sometimes write a response and then…I realize that’s just a waste of my mental energy and my time to engage. I’m sure there are people who think they’ve “won” that argument because I didn’t respond. Not with me. I just figured life is too frickin’ short to have that argument with that person.

Almost every day I ask myself why I bother even going on writing forums. I’ve been at this long enough I’m kind of set in the way I’m going to do it even if it’s not the optimal choice. Since I’m no longer in that mode where I need all the information to figure out how it all works, the forums have a lot less value for me.

And yet I still at least lurk and often get tempted to post.

Why? Why?

(Probably because when you’re only conversations on a given day are with your dog and your not-exactly-positive mother, you need some sort of social outlet. But, seriously. Writers forums are not the way to do it.)

(Of course, neither were skydiving forums. I suspect any online forums are about 90% annoyance 10% “I’m glad I read that”, at least as far as I’m concerned.)

But it’s like a drug addiction. Easy to say you should quit, but really hard to do so.

 

Survivorship Bias Can Be Interesting

I just finished reading Fooled by Randomness by Nassim Nicholas Taleb. It’s an interesting book to read although it took me an incredibly long time to circle back to it and finish it. But I did and I’m glad I did so.

One of the concepts he discusses towards the end of the book is the concept of survivorship bias. Here’s a link to a very long article about it which describes survivorship bias as “your tendency to focus on survivors instead of whatever you would call a non-survivor depending on the situation. Sometimes that means you tend to focus on the living instead of the dead, or on winners instead of losers, or on successes instead of failures.”

It’s a pernicious problem in self-publishing. Because most of the people giving advice now are the ones who “survived” to give that advice. And most of those people assume that what they did is why they survived.

But that’s not necessarily true.

Let me give an unrelated example. I watch the Price is Right almost every day while I’m eating lunch. And the way that people bid on that show is sometimes outrageously painful. I blogged about this on my old blog here. But basically what happens is that sometimes the person who wins the bidding round does so by sheer unadulterated luck.

This is the person who bids $1250 when the other three bids were $750, $1000, and $1500. They win because the price of the item was $1300 but it wasn’t a smart bid given the other three bids that had already been made. That bid shows no understanding whatsoever of how to maximize the odds of winning. Because by bidding $1250 that person gave away the chance to win if the item was actually priced from $1001 to $1249. And they have no idea that’s what they did. They don’t even see it. All they see is that they won, so they think they did it right. They don’t see how close they came to losing.

This happens with self-publishing, too. Someone will say, “I made half a million dollars self-publishing by doing x, so everyone should do it my way.” And at first blush that seems like someone worth listening to, right? They made half a million dollars. They must know how to do this.

But maybe they’re just the one survivor out of a hundred people who followed the same ill-advised strategy and they just happen to have succeeded where all others who followed the same path failed.¬† The 99 people who failed aren’t there to give their stories of failure. All we have is the one story of success.

That’s survivorship bias at work.

So if someone says something that doesn’t sit right with you, question it. Not with them, because they’ll get all snarky about their success and how you’re clearly an ill-informed fool to doubt them (ask me how I know). But look around. Try to disprove their advice. Find counter-examples. Look for the shattered failures to get the full picture. Remember that you’re talking to a survivor, you’re not looking at an unbiased sample.

An Unforeseen Challenge

I’m working on my third cozy at the moment, but earlier this week I found myself stuck and unable or unwilling to move forward with it. The reason behind that is what I find the most interesting…

The cozies are pure self-indulgence where the main character and her dog are very much like me and my dog if we were to live in the Colorado mountains and trip over dead bodies every time we turned around.

And it occurred to me as I was writing this most recent one that I was giving the dog in the books a better life than I was giving my own dog. The dog in the books has friends to play with and a stream to wallow in and gets far more attention from people than my poor dog who is always sleeping away in the hall while I write.

It stopped me cold. Because I was like, “Why am I giving this fictitious dog a better life than I’m giving my own dog?” So I spent a lot of the next couple of days hanging out outside with my pup and reading while she watched the world go by rather than locking myself away in my office and writing.

I can’t do that all the time, of course, or else the bills won’t get paid, but I figured sometimes you have to step back from the fake reality you’re creating and pay attention to the real world around you and the actual people (and dogs) that you love.

Advanced Strengths for Writers Class

I think I’ve mentioned on here a few times that I took a great class on CliftonStrengths for writers that really helped put my professional experiences into perspective for me in general and also helped me narrow down what type of writer I am and how to best be that type of writer.

I liked learning about Strengths so much that last year I became a Gallup-Certified Strengths Coach myself and have been working with authors as well as professionals and a sports team to help them apply their Strengths results to their professional challenges. (I’ve blogged about that a bit here.)

Well, now I’m excited to announce that next month I will be helping Becca Syme coach the Advanced Strengths for Writers class. The class comes with three one-on-one coaching sessions. This time around writers will get one session with Becca, one with me, and then a third session with either Becca or myself.

The great thing about having two coaches to work with is that Becca and I have different Strengths we pull on so we see author challenges and opportunities from different angles. We also have different coaching styles. (I am, not surprisingly, a little more blunt at times because of my Command and lack of Woo…) So it’s kind of a little extra bonus perspective for this cohort. (I will say I am also extra fierce in the “own who you are” department so for those with say, Significance, who’ve been taught to doubt themselves, I’ll set you straight.)

The class starts on April 17th and is $399. (You can do that in payments as little as $50 a month if you want.) So if you’ve been hearing about Becca’s classes and Strengths and want to take a deeper dive, now is the time to do so.

Also, I don’t think I’d mentioned it here (I did on my personal Facebook), but Becca published a great book introducing people to the concepts in her classes earlier this year. Check it out if you haven’t already: Dear Writer, You Need to Quit.