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Plagiarism, copyright and creativity

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AliceB
Posted on Monday, November 29, 2004 - 06:10 am:   

There's a very interesting article in the New Yorker about plagiarism, copyright and the effect on creativity.

http://www.newyorker.com/fact/content/?041122fa_fact

Best,
Alice
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AnnaT
Posted on Friday, December 03, 2004 - 01:27 am:   

Very, Alice!
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AliceB
Posted on Friday, December 03, 2004 - 07:44 am:   

Thanks.
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al duncan
Posted on Wednesday, December 08, 2004 - 04:01 am:   

Seconded. Seems strange to see the spectre of plagiarism raised against the playwright in this instance. I suspect I also wouldn't have thought twice about taking descriptive phrases and details from a factual article to try and introduce authenticity into my fictional work. Seems to me like this is just an extension of mining the real-world for material to process, like using snippets of overheard conversation, and it isn't as if the writer is (re)presenting these gleanings as their own journalistic/academic product; they're transforming them into another mode of discourse. If an artist leaves little blank areas of a wall mural unpainted to let the reality of the wall show through, can the person who painted the wall beforehand then sue for plagiarism?
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Bob Urell
Posted on Wednesday, December 08, 2004 - 05:25 am:   

Er, that's not nearly the same thing, now is it? I admit intellectual property can get quite sticky and persnickety, and particular points of this case illustrates that nicely, but boosting a writer's prose is boosting a writer's prose. If I'm writing a detective novel and decide I'd really like to have my character read a Bradbury short story in its entirety as part of the narrative, I damn well spruced up the piece with someone else's labor, didn't I? Okay, that's a bit absurd, but it plays just as well when you consider that I'm stealing when I copy and paste selected elements of other works and pass them off as my own. While all writers are magpies, it's considered bad form to USE THE EXACT SAME PHRASE IN THE EXACT SAME CONTEXT. That's not what creative writers are supposed to do, for this we have historians. Anyways, if I boost bits and pieces of prose for any purpose -- and we're not talking un-copyrightable stuff here like concepts or tropes, but word-for-word snippets of another author's work, unattributed, non-fair-use stuff here -- then I absolutely deserve to be hoisted up by my big toes and beaten with a Nerf cat-o'-nine-tails. Be gentle, it's my first time.
That's what this playwright did, she took sentences from other authors and cobbled them together. It's a Franken-play. It's alive! and infringement!
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al duncan
Posted on Wednesday, December 08, 2004 - 11:07 am:   

"it's considered bad form to USE THE EXACT SAME PHRASE IN THE EXACT SAME CONTEXT"

I totally agree, but I think the key here is "IN THE EXACT SAME CONTEXT". The context isn't exactly the same. A play is a whole 'nother animal to a feature article. The playwright is using the phrase for an entirely different purpose, to affect an entirely different import and with, quite possibly, an entirely different meaning rendered by its dramatic circumstances. The journalist is presenting fact, with some licence but basically concisely - straightforward. Painting the wall as a wall, so to speak. The playwright is presenting fiction that may have some fact in it but basically with a whole lot of licence. Painting the wall as an elaborate artifice. OK, the mural / wall thing may not be the best comparison. It's not that cut and dry given that the journalist is generally doing something a fair bit more creative than they might get credit for (though we could ask just how "elaborated" journalism can be and still be good journalism?). But the two instances of the phrase are still being used for a different purpose, for a different audience, in a different linguistic mode and discursive medium... in a different context.

Stitching in a stolen Bradbury story, sure, that's out-and-out theft because you're doing exactly what he did with it, for exactly the same reason and aiming at exactly the same type of audience; but the argument here isn't as simple as "sprucing up the piece with someone else's labour". If it was, then any writer who used a thesaurus would be an evil charlatan. That thesaurus is someone else's labour. And the writer, well, aren't they using it to find a zingier phrase, to spruce up the piece? Seems to me that plagiarism's about passing off someone else's labour as your own. Hell, if you're a dodgy enough writer that you plagiarise then you might well be dodgy enough to pick the wrong thing and make your story/novel/play even worse. What if it doesn't spruce up the piece at all? What if the original writer is a genius who knocked it off in a few minutes? It would still be plagiarism and it would still be wrong.

I think the important point being made, or at least the question being raised, by the article is: are these diffent types of "work" - the journalistic feature and the play - actually so fundamentally different in nature that the use of bits and bobs of one within the other is ethically not really the same thing as plagiarism? The article stresses that the playwright didn't just cobble these sentences together. She constructed a storyline, invested it with thematic depth, characterisation, dramatic tension. There's enough difference in the nature of the labour required to create these works that qualitative difference should perhaps be considered along with quantitative in deciding on what constitutes fair use. The journalistic feature writer did not see those phrases as components of a work with plot, drama, character, etc., so they didn't feel the use of them in that kind of work was a theft in that way. The writer says for themself that they did not feel their work had been used unfairly.

So I can kind of see why the playwright would have assumed that the content of a newspaper clipping, facts, are fundamentally fair use in the creation of fiction. She's not working in the same field. She's not passing herself off as a journalist. She's not gaining money or kudos in the journalist's place. Maybe those types of work are similar enough that she does have a case to answer for not acknowledging her sources but she's by no means the monstrous, evil, word thief. I'm just not sure the mad mob of peasants with burning pitchforks is quite so appropriate in this circumstance.
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Dave G.
Posted on Wednesday, December 08, 2004 - 01:07 pm:   

Still, doesn't it seem a bit disingenuous for an eminent dramatist to use a scientist's autobiographical book as source material, lift words and actual events from its pages, and not at least make a token effort to obtain some sort of sign-off from the author? We are, after all, living in an age when the rights to non-fiction works like Lewis' have significant and quantifiable value. Lavery is being sloppy and/or naive, at best. Her publishers, too.

The "I lost the folder" excuse doesn't wash, not for a professional writer, anyway.
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AliceB
Posted on Wednesday, December 08, 2004 - 02:03 pm:   

I was particularly intrigued by the portion of the article that discussed copying lines of music--because it demonstrated what I think writers do too, except over a longer piece of work. There is this thin line between plagiarism and copyright infringement--one being the act of copying someone else's work, the other being a use of someone's work without permission in violation of the law. Part of what makes the overall article interesting to me is how Malcolm Gladwell is trying to make the distinction and somehow, by the end, feels that although plagiarism might have occured in his case, what Lavery did is probably not copyright infringement.

Lavery should have acknowledged her sources (and, sorry, journalists' works are copyrighted, too), but on the other hand Gladwell seems to have forgiven her. Was it because she did what she did so well? And if she had done a lousy job, would he have decided to sue her?

The other issue is how the scientist is treated. Lewis felt violated--because Lavery did not acknowledge that she had based her character in part on her. Since Lewis didn't write the article that Lavery used, she can't sue for copyright infringement, and yet she's the one most affected by the copying. (There's a hint, toward the end, that she may have a slander claim--but I don't think anyone's gone to court.)

There's this quandary. If the play is as good as all the reviews said (and I haven't seen it) can we/should we excuse Lavery's sloppiness? If we could look back from a future lens, and if the play carried weight at that point as a literary masterpiece (I make no claims that it will), I'd guess that her sloppiness would be forgiven. Yet from the point of view of Lewis, I can't see that she'll forgive easily.

It makes me think of J.M. Barrie's relationship with the Davies children, and how incorporating portions of them into Peter Pan inexorably changed their lives... not for the better.

Best,
Alice
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George H Scithers
Posted on Wednesday, December 08, 2004 - 10:46 pm:   

I've run into real plagiarism a few times in my decades as an editor, and once had to defend a client from that charge as a lit'ry agent. One plagiarist attempted to sell a retyped-in-its-entirity copy of Stanley Weinbaum's "The Black Flame" to -- of all people -- Don Wollheim, who turned him over to the Los Angeles County district attorney and notified many other editors of the attemps. One chap in India tried to sell me one of Bradbury's stories -- another, in the Netherlands, tried to sell me a Ted Sturgeon story -- in both cases, retyped and uncredited to the original author. And more recently, some twit tried to sell me the epilogue to a Straub/King collaboration. My practice has always to send copies of the rejection letter to other editors in the field and -- in the most recent case -- to the authors' publishers' legal department, who, I hope, made the twit very sorry for his attempt.
Because there are so many published stories out there, it's entirely possible that I might find a plagiarized story in my mail box, read it, and not recognize it for what it is. This is why editors tell each other about plagiarists; it's also why -- when resubmitting one of your own stories -- you should carefully remind the editor that she's seen it before, and under what circumstances.
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al duncan
Posted on Thursday, December 09, 2004 - 07:21 am:   

I guess I'd have to say that I'm not so much trying to defend the playwright here as expressing some sympathy. Yes, what she did was naive and sloppy. Absolutely. She should have acknowledged her sources - full stop. It's just that there's this wee niggle about the case for me...

See, what interests me is that Gladwell seems not just to have forgiven her but to have decided from a fairly objective stance that a) her actions were not maliciously exploitative; and b) the end result is not a derivative, cobbled-together stitch-up job but actually sufficiently original to excuse the "sampling". It's the comparison with sampling in music that intrigues me.

Part of my interest, here, I think, is that I think writing is playing catch-up against music in this respect. The use of the record deck - sampling others' work, basically - is the most radical innovation in popular music since the electric guitar. The art world is innovative to the point of absurdity, it sometimes seems. And meanwhile what do we have in literature? We have genre writers who are, metaphorically speaking, still stuck somewhere in the 60's/70's battering away on their Fenders - garage rock, pub rock, prog rock, maybe even a little bit punk, but basically rock'n'roll. Or we have experimentalists doing the equivalent of atonal modern classical which only a tiny portion of the public "gets". We're not quite as bad as the literary realists with their dreary tales of middle-class, middle-brow, mid-life crises, little more than latter-day Victorian melodramatists, in my opinion (in the musical metaphor? I dunno... chamber music?). But what we don't have is truly popular, truly innovative writing comparable to club music in its various flavours. For me, the question is are we being too conservative, too precious?

I'm not going to try and make a case for allowing sampling of other writer's fiction - because a) I'm sure I'd crash and burn bigtime; and b) I don't know if I'd be ready to accept that kind of reuse of my own work - but using samples of reportage... It makes me think of the 80's song by Paul Hardcastle, "Nineteen" which cut and looped, I believe, a real-life documentary voiceover. The script of that documentary would presumably be covered by copyright. Yes, of course, journalists' words are covered by copyright. But the reuse of those words is such a radical departure from their original context that it would seem crazy for the scriptwriter to charge Hardcastle with plagiarising his work.

"The other issue is how the scientist is treated. Lewis felt violated... Since Lewis didn't write the article that Lavery used, she can't sue for copyright infringement."

This is the other part of the article that gets me, because it's challenging the rationale behind the plagiarism accusation. Gladwell seems to have come to a third conclusion: c) that Lewis's problem is really to do with a sense of her privacy being invaded. She feels that her personal life has been simultaneously exposed to public scrutiny and at the same time falsified with fictional elaborations that she feels make her look bad. She seems annoyed as much by what is not based on her as by what is.

So the writer is damned for making changes that distance their character from the real-life inspiration and yet also damned for simply "copying" that real-life inspiration into their character. She's damned for not making it clear that this fictional character "is" basically Lewis (by, say, naming the character in the play "Lewis") but would be damned as a slanderer if she were to do just that, since her character is sufficiently differentiated from the real-life Lewis that it is not an accurate representation of Lewis. To me, it seems a bit like Lewis wants to have it both ways. She makes her real-life words and actions a matter of public record in her autobiography and interview. And then is horrified to see her "private life" on stage (and an altered version of it, to boot). She reports the words and actions of the killer as well as herself. But seems to be claiming intellectual property rights over those words and actions, as if she were their creator. If the killer or some eavesdropper, or somebody Lewis had talked to in the pub about it, if they then wrote a play which replicated those words and actions, would they be plagiarising? In the first two instances I don't see how you could claim an exclusive right to use those words. The killer and eavesdropper have equal access to the facts, equal right to report those words. In the latter I would've thought this would be classed as making those words public. And if the person you talk to in the pub happens to be a journalist, if you are in fact giving an interview, telling the world what this killer said to you and what you said to them, it just seems strange to object when someone down the line ends up repeating the facts that you have given them access to, or weaving that fact into a work of fiction. You've made it public knowledge.

Ach, I think I'm going to quit now and shut up. I keep coming across as if I'm defending this playwright, and it's really more that I think the article raises issues that deserve a closer look. I do think a little more caution and rigour with her sources on the playwright's part could have saved her a lot of grief, at the very least.
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AliceB
Posted on Thursday, December 09, 2004 - 07:43 am:   

I agree with you Al. It's funny: on the one hand I think the playwright was sloppy. On the other, I want a playwright/writer to be able to do the kind of sampling that leads to interesting new works. I wonder if she had simply acknowledged her sources more thoroughly, and made a disclaimer that the main character of her play was fictitious, whether there would have been less of a brou-ha-ha.
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Carole C
Posted on Thursday, December 09, 2004 - 08:03 am:   

I agree with Al as well. I think it's a bit of a false concept to say you should not plagiarise, when the reality is that everyone feeds off the culture, and people have probably been absorbing lots of ideas, films, books etc, which sometimes they could regurgitate when writing without even knowing it. Also it's interesting that when people are hypnotised they often come out with verbatim extracts from books they may have read in infancy and not even remembered.
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Dave G.
Posted on Thursday, December 09, 2004 - 08:06 am:   

I can't help agreeing with Al a bit here. I've always been very sympathetic to musical sampling; I think it can revive forgotten work and turn it into something entirely new. Ideally, writers should be free enough to do something similar. But in the rush to protect writers' work, we have really created a copyright minefield, in which so many forms of expression are protected one almost can't help but stumble at some point. (Consider the way Shakespeare played with contemporary sources and made them his own and think about what we're currently discussing...) There's almost no source of inspiration that writers can use without facing some claim of ownership from someone somewhere.

I think Lavery may have been just a bit reckless about the way she did her "sampling." A play about a profiler forced to confront a serial killer: probably OK. Such a play salted with incidents and anecdotes from the life of a real person: a twist too far. The musical analogy? Using a three-second piece of a recording not identifiable by the casual listener vs. a 15-second soundbite the listener instantly recognizes. You might get away with the former, but certainly not the latter.
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gary gibson
Posted on Thursday, December 09, 2004 - 09:23 am:   

It may be diverging from the original article as Al says, but I feel driven nonetheless to address his point about writing needing to catch up with modern music and the arts: his argument is interesting and (in my humble opinion) incorrect. Unlike the other art forms Al mentions, writing is not yet dependent on any particular technology, except perhaps the printing press: by contrast, music - at least, modern music - is.

Sampling is a big part of music because there are sampling devices, so in that case, you could say the medium (sampling machines) are defining the message (the music). Modern art is driven by the fact it was freed from being a form of reportage following the invention of photography, and the way it interacts with the human brain is entirely different from the way writing does.

Writing, however, can be done with a quill pen on parchment, or even a fingernail writing in blood on a wall - it's technology non-dependent,except perhaps when it comes to the means of distribution. If writing does alter or catch up in the sense that Al suggests, it will (I suspect) be more a case of taking advantage of new technologies, such as the Librie handheld reader, which mimics the look and feel of ink on paper while being entirely electronic (plus, it apparently looks and feels not unlike a real book). It should also be noted that many blogs have gone on to publication as actual paper books: blogs themselves may represent a genuine movement forward already, in terms of both fact and fiction published.

When technology like the Librie is cheaply and widely available enough, perhaps we'll see something along the lines of interactive or even mass-collaborative fiction, or the kind of thing Neal Stephenson wrote about in the Diamond Age. Or indeed, something entirely different and unique we haven't yet imagined.
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AliceB
Posted on Thursday, December 09, 2004 - 09:52 am:   

But Gary, isn't using phrases from another written work for a new one a kind of sampling? I know it's not technology driven, but we do hear echos from one writer to the next, the way you hear snippets of songs within others.
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Jeremy Lassen
Posted on Thursday, December 09, 2004 - 10:13 am:   

Kathy Acker

She Redeployed entire sentences and paragraphs of other writers (uncredited and under copyright) work into her own narratives.

If Acker is highly regarded in some circles, how is her work any different or more/less legitimate then what this playwrite did.

If I remember correctly, william Gibson and Bruce Stirling used this exact same literary technique for THE DIFFERENCE ENGINE -- Gibson took who tracks of advertising copy and newspaper articles (from the period) and incorporated them into the novel.

I also give you "mashups" like the Kleptone's "A Night at the HipHopra". <http://klepshimi.blogspot.com/2004/09/kleptones-night-at-hip-hopera.html>
Totally illegal, for purposes of copyright. But a totally original and compelling piece of "art", IMO.

We live in interesting times. The artistic aesthetic of “appropriation” has been acknowledge throughout most of the 20th century, and combined with new technologies (digital storage and manipulation of visual and aural material, massive searchable databases of textual artifacts, etc), we are seeing some truly invigorating ideas and pieces, though they often clash with what is traditionally considered “appropriate”, in the legal sense or otherwise.
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JV
Posted on Thursday, December 09, 2004 - 11:33 am:   

The entire text of "The Transformation of Martin Lake" in City of Saints is the text of Koontz's Christmas books backwards and inverted.

JeffV
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Jeremy Lassen
Posted on Thursday, December 09, 2004 - 11:55 am:   

Gary, I hadn't seen your post before I put mine up, but I wanted to again point at Acker... a writer who has "sampled" extensively, as a literary technique. It has nothing to do with technology, IMO.

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Carole C
Posted on Thursday, December 09, 2004 - 01:04 pm:   

The recent anthologies 'The Many Faces of Van Helsing' and 'Night Lands' used 'Dracula' and 'The Night Land' to spawn original stories.

If books are over 70 years old they go out of copyright (unless it is picked up), so I think it may well be possible to sample those, once it is established that they are in the public domain. (However, I could be wrong!)
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Dave G.
Posted on Thursday, December 09, 2004 - 02:12 pm:   

One hopes that "public domain" does not become a thing of the past. Witness the way Disney was able to get Congress to extend copyright protection on a bunch of their works. Combine this with the ever-expanding range of things that are deemed "copyrightable" (ie, the name "Elvis") and you have a nightmare scenario in which every conceivable mode of expression belongs to somebody. (Hell of a premise for an FSF story, I must say...Imagine having to negotiate permissions for a simple conversation because all the words are owned!)

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