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Plagiarism vs. copyright
12/5/2006

By Mike Hiestand
Even when one makes every conscious effort to avoid the P-word, the nagging thought can remain: what if it wasn�t enough?

"Plagiarist!" It is an accusation that strikes fear in the hearts of students, academics, journalists, authors and presidential candidates alike. The fear is certainly that of being caught: punished by those in authority, professionally censured by one's peers, publicly humiliated. Often too, however, it is a fear of the unknown. From the day a third grade student, armed with cut-and-paste commands, is assigned a report on Thomas Jefferson and turns to Wikipedia, he confronts the same questions faced by the best-selling historian who dares consult secondary sources: how do I use this information without "overusing" it. How much use is too much? What needs to be attributed and what doesn't? Is substantially rewording or paraphrasing a passage sufficient to make it my own? What constitutes "substantially?" And on and on. Even when one makes every conscious effort to avoid the P-word, the nagging thought can remain: what if it wasn't enough?

Plagiarism is a scary topic for many because it is a moving, gray topic. Everybody wants a simple definition of plagiarism. The problem is, there isn't one. In fact, there are many. The American Association of University Professors (AAUP), the American Historical Association (AHA), the Associated Collegiate Press (ACP) � all, to name just a few, have their own definition of plagiarism � and none of them are especially simple to understand, or moreover, to apply.

For example, in a widely reported case from the early 1990's, historian Stephen B. Oates was investigated by the AHA on charges that he plagiarized his biographies of William Faulkner, Martin Luther King, Jr. and Nat Turner. Mr. Oates was accused of plagiarism by two government whistleblowers who had used a computer text-analyzing machine to identify multiple passages in Oates's work that contained words or phrases similar to those used in the works of other authors, an investigatory practice that set off a controversy all its own.

For example, the computer came up with following two passages:

From Time magazine, Feb. 18, 1957: "Up to 25 profanity-laced telephone calls a day came to the King home. Sometimes there was only the hawk of a throat and the splash of spittle against the earpiece."

From Oates's 1982 book Let the Trumpet Sound: The Life of Martin Luther King, Jr.: "Then there were the obscene phone calls � as many as twenty-five a day now. Sometimes there was only the hawk of a throat, the sound of spit against the receiver."

The written decision of the AHA was widely criticized as creating more questions than it answered. In it, the AHA found "no evidence that Stephen Oates committed plagiarism as it is conventionally understood." The AHA report, however, went on to say that it had found "evidence in Mr. Oates' work of too great and too continuous dependence, even with attribution, on the structure, distinctive language and rhetorical strategies of other scholars and sources." Mr. Oates, like many others, has called the AHA finding "incredibly vague."

And it is. But then so is the definition � or definitions � on which the AHA relied. The AHA revised its plagiarism policy following the allegations against Oates. Prior to that, it had defined plagiarism broadly as "the expropriation of another author's findings, interpretation, or text, presented thereafter as one's own creation without proper attribution to its actual source." The AHA's current Statement on Standards of Professional Conduct, last adopted in 2005, now defines plagiarism simply as "the expropriation of another author's work, and the presentation of it as one's own." The current policy, however, also contains a second category of "more subtle [plagiarism] abuses," which includes "the limited borrowing, without sufficient attribution, of another person's distinctive and significant research findings or interpretations." As the Oates case apparently points out, simple word counts or computer-driven comparisons are incapable of sufficiently weighing the nuances and complexities that each case potentially brings.

Plagiarism is not a legal term. As noted above, it is a term for an academic crime, usually defined by professional or academic bodies. There are no civil statutes, accompanied by legal definitions, that one can look to for guidance. Indeed, the amount of guidance available will vary depending on the specific definition used and the body responsible for investigating the charges. You won't be tossed in jail or fined by a state or federal court if found guilty of plagiarizing someone else's work. But you might be subject to punishment or censure by a non-legal body with the ability to enforce its findings. In addition, most publications have policies against plagiarism and reporters have been fired by their employers for improperly using someone else's work.

Copyright law � for which a body of federal law does exist and whose violation can result in civil fines or other penalties � is a cousin of plagiarism, but with a few key differences. Simply stated, a plagiarist is a person who poses as the creator of words, ideas or methods that are not his own. By contrast, a person infringes on another's copyright when he makes unauthorized use of material that is protected by a copyright. A few distinctions stand out. First, for purposes of plagiarism, the material stolen need not be protected by a copyright. For example, a person could plagiarize Shakespeare's works by not giving The Bard proper credit. He would not, however, be guilty of copyright infringement because all of Shakespeare's works, now approximately 400 years old, are in the public domain and can't be protected by copyright. Second, a copyright violation can occur even though the infringer gives proper credit to the creator and is, therefore, not guilty of plagiarism. For example, a student newspaper cannot, without permission, lift a picture off of WashingtonPost.com to illustrate its own story � even if the source of the photo is carefully identified. Of course, some people simultaneously take credit for and improperly use the work of others � they are both plagiarists and copyright infringers.

Despite the ambiguity that can exist when a charge of plagiarism is formally investigated, there are a few guidelines that can help conscientious students, teachers and others from falling into the plagiarism pit in the first place. Anne H. Frank, former counsel to the AAUP, has pointed out the following:

First, almost all definitions of plagiarism require intent on the part of the alleged plagiarist. In other words, sloppy scholarship or journalism alone is not sufficient to sustain a charge of plagiarism. The plagiarist must have intended to deceive others into thinking that the copied work was, in fact, his own.

Second, the form of the text is relevant. "Verbatim copying, without quotation marks or attribution," Frank says, "is generally more offensive than the paraphrase." Similarly, she points out that the context in which the original work is used is relevant to the determination or at least severity of a plagiarism charge. For example, a student taking an Ellen Goodman column from The Boston Globe and running it in the student newspaper under her own name (as an adviser once called to tell me one of his students had done) is different from a student inserting a paragraph from that column, without proper attribution, in an otherwise creative two-hundred-page thesis. Both examples are plagiarism, though most would agree the degree of the offense differs.

A third suggestion is to "adequately" (read "frequently") cite the earlier source in the later work.

This last suggestion points out what is probably the most important thing to keep in mind to avoid getting caught in the plagiarism tangle: when in doubt about how to use material in some way derived from someone else's hard work, don't chance it � simply attribute it. Quotation marks are your friend.

Understanding, and moreover, defending against a charge of plagiarism can be a confusing and complicated process. While some cases are so blatant that no defense is possible, most are "in disguise," requiring significant effort to adequately and fairly address the various nuances or shades that are hallmarks of the creative process. The results can be messy. Cautious and deliberate avoidance is the best � and only � sure defense.

Adapted from a work by the author originally submitted to Student Press Review in 1994.

Mike Hiestand is an attorney, based in the far, upper left corner of the "Lower 48," and works as a legal consultant to the Student Press Law Center.

© Copyright 1999-2007 Associated Collegiate Press

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