A LEGAL REMEDY FOR PLAGIARISM?
Rethinking The Ambrose And Goodwin Plagiarism Scandals

By JULIE HILDEN


julhil@aol.com
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Thursday, Feb. 07, 2002

In recent weeks, the historians Stephen Ambrose and Doris Kearns Goodwin have been at the center of a heated debate about plagiarism. Ambrose is a Greatest Generation scribe whose latest bestseller is The Wild Blue; Goodwin is the author of, among other books, The Fitzgeralds and the Kennedys.

Five of Ambrose's books, and one of Goodwin's, have been found to contain passages that constitute direct quotations from sources, but that nevertheless are not enclosed in quotation marks (although they are, at least, properly footnoted to the relevant source). Critics have cried plagiarism; Ambrose and Goodwin have tried to excuse their failure to add quotation marks as inadvertent.

Goodwin's errors resulted in a confidential settlement with Lynne McTaggart, whose passages from Kathleen Kennedy: Her Life and Times appeared verbatim, without surrounding quotation marks, in Goodwin's Kennedy book. (McTaggart told the Weekly Standard that it was "a substantial monetary settlement," not "a token sum.")

The Ambrose and Goodwin scandals have raised some important underlying questions, the answers to which ought to determine how bad we think plagiarism like this is, and what we should do about it. First, is the real victim of partial plagiarism the author whose work is stolen, or is it the reader who believes she is reading the work of one writer, yet is really reading the work of another? Second, in each case, what is the harm the victim suffers?

Finally, does (or should) the law provide any further remedy for these harms to writers and readers - or is the remedy it already provides through the copyright law sufficient?

A Wrong to the Plagiarized Author?

Certainly the author whose work is plagiarized suffers the wrong of having his or her work "stolen." But stealing words is very different, of course, than stealing a loaf of bread.

For one thing, limited, sporadic plagiarism - the type of which Ambrose and Goodwin are accused - may have no effect at all on the monetary value of the plagiarized work, or the monetary fortunes of the plagiarism victim. Plagiarism, in short, is not a zero-sum game. (Indeed, plagiarized usage that is nevertheless properly footnoted may even increase the value of the prior work; being cited by Ambrose or Goodwin, even without full credit, is still a compliment and may cause the reader to consult the cited works.)

One exception to the general rule that partial plagiarism does not constitute monetary theft, however, occurs when the plagiarized work has not yet been published or has gained little renown, and the plagiarism "scoops" its news value. A World War II veteran has contended, for instance, that Ambrose stole part of his then-unpublished World War II memoir without proper permission or credit.

If this is indeed the case, Ambrose may truly have stolen from the veteran in a more literal sense - since Ambrose readers, feeling they have already heard the veteran's story, may decide that they need not buy the veteran's book. Even in such cases, however, the problem is not only the plagiarism but also, in part, the lack of journalistic courtesy in reporting what is really someone else's story to tell - a discourtesy I will nickname the "memoir scoop."

Perhaps the most dastardly form of the "memoir scoop" occurs when a criminal tells the story of a crime - thus pre-empting the victim's ability either to profit from, or decide for privacy reasons not to publicize, his or her story. The "memoir scoop" was an issue in the Supreme Court's decision in Simon & Schuster v. New York Crime Victims Board. There, the Court struck down, for First Amendment reasons, a statute purporting to shift to victims the gains from criminals' sale of their crime stories. (In that case, the story was a Mafia memoir that later became the basis for the movie "Goodfellas.")

The "memoir scoop" aside, partial or sporadic plagiarism does not generally impose a monetary harm on the plagiarized author. Rather, the harm is better conceptualized as a privacy harm. The anger someone feels at having his words stolen is akin, I believe, to the anger he might feel if a friend copied his unique clothing style, or appropriated his love poem, written for his girlfriend, to read to another woman. In some sense, plagiarism steals a part of the author's self.

That explains why the more unique the language, or the more personal the experience it recounts, the worse the plagiarism may seem. Plagiarizing a workmanlike phrase from a news story that reports an event being covered by many media sources seems like a plagiarism misdemeanor, while plagiarizing part of a poem seems more like a plagiarism felony. Appropriating a unique insight or a line of verse is wrong not because it is saleable, but because it is personal.

A Wrong to the Reader?

What about the reader who reads words that purport to have been written by one writer, but in fact were written by another? Slate's Timothy Noah has argued that the reader is "essentially defrauded" by such plagiarism, particularly if it is intentional rather than an inadvertent citation slip-up. But as with the metaphor of theft, the metaphor of fraud, when it comes to plagiarism, is just that: A metaphor, not a literal reality.

Moroever, the reader of a partially and sporadically plagiarized work not only cannot claim to have lost anything that can be monetized, but also (unlike the writer whose work has been plagiarized) cannot claim to have lost much, if any, of her privacy or individuality, either. Accordingly, a genuine question is raised as to what she has lost - if anything.

After all, the Ambrose and Goodwin books (except for The Wild Blue, which was published only recently) had long been on the market before the scandal broke without readers noticing the attribution problems. When readers cannot tell the difference between the author's own words and those of others, one might be tempted to remark, "No harm, no foul."

It is also worth remembering that with nonfiction books often ghostwritten, or written in part by subordinates who receive little or no credit for their contributions, any reader who believes in the first place that every word he or she is reading came from his or her beloved author's pen is naive. (Fiction is a different matter but, again, fiction is not what is at issue in the Ambrose and Goodwin scandals.)

Copyright Law Offers a Partial Solution to Plagiarism

Even if plagiarized writers' harms cannot be easily monetized when the plagiarism is partial, it is worth taking them seriously, since privacy, too, is an important value. But it is probably not worth creating further legal remedies for such harms. After all, some remedy, at least, is already offered by the copyright law - which, for example, enabled author McTaggart to reach her settlement with Goodwin.

Granted, when plagiarism is sporadic or comprises relatively little of the plagiarist's work, a copyright case might not succeed on its merits in the end. However, few authors will want to go to trial to defend appropriations of another's work, even if they may ultimately win their case; no one wants to stand up and make (or have their attorney make) the argument that while they stole someone else's work, they did not really steal enough of the work for it to matter.

Moreover, while the law may not be entirely on the plaintiff's side, the jury probably will be, and fact-intensive cases like this will be likely to make it to a jury. For these reasons, the copyright law as it currently stands provides a relatively strong incentive for plagiarists to settle valid claims against them by the writers whose work they have plagiarized, and a reasonably good remedy for writers whose work has been stolen.

Slate's Noah argues, however, that even when the copyright law works to vindicate the rights of writers whose work has been plagiarized, it still does not provide a complete solution - for it does not right the wrong to readers. Noah argues, accordingly, that settlements like the McTaggart-Goodwin settlement should not be confidential: "These hush-hush resolutions of plagiarism disputes have got to end," he declares. Otherwise, Noah points out, readers may never know that the books they read are partially plagiarized.

The problem, however, with ending confidential settlements in this area is that plagiarists would then have little incentive to reach a settlement with the writers they have plagiarized. Some of the plagiarized writer's leverage to force a settlement derives precisely from the threat to go public.

Furthermore, without confidentiality, the alleged plagiarist - who will have to live with public shame one way or another, and may have his publishing house on his side - might as well force the alleged plagiarism victim to undergo the trouble and expense of going to court. And in this game of chicken, it may be the plagiarized writer who loses: protracted litigation is an experience that few individuals can afford to fund, and that few writers can afford the distraction of enduring.

In short, prohibiting confidential settlements would sacrifice the interests of plagiarized writers in order to protect the interests of readers of plagiarized works. But, as I argued above, plagiarized writers' interest in not having their work stolen is much more intense than readers' interests in not reading partially-stolen work. It is the writers who need a remedy more - and if confidential settlements help the writers, as I believe they do, then we should continue to allow them.

Noah also suggests that the publishing industry should put pressure on authors to unilaterally waive the right to become plagiarism plaintiffs - so that their only recourse will be, instead, to complain publicly when they are plagiarized. But even if the publishing industry were to coerce from writers this kind of unilateral waiver, that waiver would likely be legally ineffective, due to the very fact that it is unilateral, and not supported by "consideration" - the thing of value, given in exchange, that can make a promise an enforceable contract.

Moreover, this suggestion, like Noah's proposal to end confidential settlements, improperly sacrifices writers' greater interests to readers' lesser ones. Noah would have writers give up any chance of a remedy for readers' benefit, an unfair trade-off.

Confidential Plagiarism Settlements Are Hardly the Most Objectionable

Finally, it is important to note, when considering Noah's proposal, that confidential settlements of plagiarism cases are hardly the most notorious confidential settlements out there. Such settlements are common in the legal profession. Rightly or wrongly, secrecy and silence can together act as a currency, another bargaining chip for plaintiffs to offer defendants.

Moreover, there is rarely a confidential settlement in which the public would have no interest; indeed, the very reason settlements are made confidential is that one or both of the parties would like to keep their terms safely outside the public eye. A wholesale prohibition on confidential settlements might be a good idea - but plagiarism settlements should hardly be first on the list. Unlike other acts that equally can be the basis for confidential settlements, plagiarism has never affected anyone's health or safety, and only rarely can it even be faulted for affecting someone's livelihood.


Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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