Did Arnold Plagiarise Kacsmar?
For that legal spider web we turn to one of our favorite legal experts, broadcast attorney John Garziglia who takes a closer look at the issue. What legal lessons can radio professionals learn from this copy-and-paste incident? John Garziglia says, "Repeat after me 'It is not okay to copy and paste whatever is found on the Web, even if "everyone" does it!' But what is this? Is it a copyright violation; is it plagiarism, or both?"
While copyright law is generally complicated and obtuse, the law is clear in one simple respect as to content on the Web. Most privately authored articles on the Web are copyrighted by someone and may not be reproduced in whole or in part without permission to do so being given by the holder of the copyright.
Plagiarism, which is the use of someone's words without acknowledgment, is usually a matter of professional ethics. Material can be plagiarized even if not protected by copyright. For example, a writer can have full rights to use certain material, possibly having even paid for the rights to use it, but then claiming it as his or her own words would still be plagiarism. An accusation of plagiarism can be professionally crippling.
For a written article, copyright in the United States automatically attaches upon the creation of an original work. No registration or other action is needed for an author to invoke copyright protection although a Copyright Office registration puts a copyright holder in a better position if litigation arises. It is not necessary for a copyright symbol or other copyright designation to appear for an author to invoke copyright protections.
Copyright law is rife with exceptions including the affirmative defense of “fair use” which is usually invoked when parts of an article are copied or quoted for purposes of commentary. Fair use examples include commentary, search engines, criticism, news reporting, research, teaching, library archiving, and scholarship.
But, is the use by Chris Arnold of 15 paragraphs of Scott Kacsmar’s article fair use?
Most analyses of fair use claims are difficult at best. Wikipedia observes that with fair use, it is “usually possible to quote from a copyrighted work in order to criticize or comment upon it, [and] teach students about it … [a] teacher who prints a few copies of a poem to illustrate a technique will have no problem … a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.
For writers, whether the written work involves a blog, a website article, or a printed article, the lure of “copy” followed by “paste” must generally be avoided unless the words copied are truly only for the purpose of commentary and then only enough of another’s words are used to enable such commentary.
Is the use of the 15 paragraphs plagiarism? Citing a source generally prevents against accusations of plagiarism. For instance, had the 15 paragraphs at issue been attributed to Kacsmar, the outrage Kacsmar expressed would likely not have involved the more incendiary implied charge of plagiarism. Copyright violations, while serious, do not seem as newsworthy.
Would Chris Arnold have been okay to copy Scott Kacsmar’s 15 paragraphs, attribute the 15 paragraphs to Kacsmar, and then comment in the article as he later did in his tweet that “u sir are trulyawesome”? At the least, it would not have been plagiarism.
While the use of the 15 paragraphs with attribution and commentary still may have still been a copyright violation, it is unlikely anyone, including Kacsmar, would have been seriously troubled by it. Such a use of 15 paragraphs with attribution certainly would not have been the subject of articles in the Dallas Morning News and Radio Ink!
While even full attribution does not eliminate potential copyright liability for an unauthorized use of another’s work, proper attribution is often all that is needed to flatter the author and avoid accusations of malfeasance for the use of another’s words.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC, and can be reached at (202) 857-4455 or email@example.com. Have a question for our "Ask The Attorney" feature? Send to firstname.lastname@example.org.
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