If there’s one thing that I’ve learned over the past 13 years of running Plagiarism Today, it’s that a LOT of people think they’ve been the victim of plagiarism.
However, those who are right and can prove it are the exception to the rule. Most either are seeing plagiarism where there is none or simply lack the evidence to prove it.
Because of this, most lawsuits that are brought over copyright infringement related to plagiarism are quickly tossed. Whether it’s against Chard Harbach, JK Rowling or Emma Cline, the lifespan of these claims tend to be pretty short.
The reason is that proving you are a victim of plagiarism, enough to convince a court of law, is extremely difficult. So, before you either hurl accusations or, worse yet, file a lawsuit, it makes sense to see if you can actually prove your case.
To that end, here are the five steps you need to complete to successfully prove you’ve been the victim of plagiarism.
Step 1: Prove Your Idea/Work is Original
Before moving anywhere with your claim, it’s important to prove that whatever of yours you feel was copied is original.
If you’re dealing with sections of verbatim text or other content, this is actually pretty simple to do. You can simply check the content for duplicates and see if it appeared anywhere else before you.
However, things get much trickier when you’re dealing with ideas. Proving that an idea is new to you is nearly impossible. While details can point to the development of a unique character or story, to show a broad idea is unique to you an uphill battle.
But, no matter what you are claiming was plagiarized, it’s important to first check and make sure it is truly original to you. While plagiarizing an unoriginal idea or work is still a plagiarism, it may mean that you’re not the best person to bring the case forward.
Step 2: Show What Was Copied Can Be Protected
This one is only really important if you’re considering a lawsuit, but, if you are, it’s important to make sure that whatever you are claiming was plagiarized is protectable under an intellectual property right.
Most of thee time, this will mean proving that your work is protectable under copyright. That, in turn, will mean understanding the idea-expression dichotomy in copyright.
That distinction means that ideas are not protectable under copyright though the expression of those ideas are. This means a specific arrangement of words, a photograph, a song, etc. are protectable but the idea to create such a work is not.
There’s obviously a great deal of gray area with this and a lot of complexity. For example, characters can be protected by copyright and a work can be considered an unauthorized derivative work if it a largely new creation based upon an original work.
Still, plagiarism doesn’t always overlap with copyright (or any other category of intellectual property). It’s perfectly possible to take something, even to the point of being considered a plagiarism, but not violate an exclusive right.
Step 3: Show the Plagiarist Had Access
One of the most common ways for a lawsuit dealing with plagiarism to get tossed is that it fails to show that the defendant (the alleged plagiarist) had access or ever saw the original work.
We saw this in the Helen Keller case, which saw the allegations against her being largely dismissed until it was shown she had access to the original story. This was also a key element in the dismissal of the lawsuit over the TV show Power, where the judge said, “Plaintiffs have not met their pleading burden of showing more than a bare possibility that Defendants had access to Tribulation.”
If you can’t show that the plagiarist likely had access to the original work, then the case is dead before it starts.
Often times access is easy to prove. If a work is widely published or even broadly available online, proving possible access largely a non-issue. However, if your “plagiarized” work has sat in a desk drawer and only seen by a few people, it’s a much more significant question.
Step 4: Prove That It’s Copied
Finally, we get to look at the actual overlap between the works. This is the part that most people associate with proving plagiarism even though, as you can see, it’s actually one of the latter steps.
To that end, to prove that the work was copied you have to prove two things:
- That there’s no way the works could have been an independent creation.
- That the work was copied from you (and not some mutual source).
The second issue looks back to step one. You need to make sure that whatever you are claiming is copied is unique to you. If there’s a common source that predates yours, then there isn’t much that you can say.
However, the first point is also a challenge. Overlapping words does not, by itself, prove plagiarism. There are clichés, common phrases, titles, jargon and other reasons that words might overlap without any plagiarism.
In short, this challenge becomes about proving so many strong similarities that coincidence becomes either impossible or extremely improbable. The case of Instinct plagiarizing Bones is an excellent example of this. One or two of the similarities could be easily dismissed, but the long list of very specific overlaps makes it impossible to ignore.
When looking at a text analysis, you need surprisingly few words to prove that a work was copied. You can test this yourself by taking a string of 12 words from this article that are not a common phrase and run it through Google. It will likely turn up no results other than this page (and any copies of it).
To be clear, a 12 word string wouldn’t likely be a copyright infringement. However, given the number of ways most ideas and thoughts can be expressed, it could easily prove that the passage was copied.
In the end, a good plagiarism analysis, which is one of my areas of expertise, works to show that the similarities can not be explained by coincidence or other independent creation.
There’s no magic bullet to making that determination, just a matter of finding all the evidence and showing that coincidence cannot reasonably explain the overlaps.
Step 5: Prove it Lacks Attribution
Though attribution isn’t a major factor in copyright disputes, if you’re trying to push the narrative that the copying is plagiarism, you need to show that the work isn’t attributed.
This might seem silly as it should seem pretty obvious whether or not a use is attributed, but that isn’t always the case.
Take, for example, cases poor paraphrasing. If someone copies and pastes a large chunk of text, changes a few words but doesn’t indicate that it’s mostly a direct quote, is that a plagiarism if the original source is cited elsewhere? Also, what about when a citation is omitted though most of the work is attributed correctly? What if a source is cited repeatedly in a work but one or two citations are missed?
This enters into a gray area that is more commonly seen in academia than elsewhere. But even news reporters often struggle with when quote vs when to paraphrase, how to appropriately cite the sources they use and so forth.
If there’s no attribution at all, the matter is simple. However, if there is some attribution, you have to show that the attribution provided fails to meet the standard of the industry and that the person involved did so either maliciously or negligently.
This can be tough to prove, especially in many of the gray areas of plagiarism.
Proving that you’ve been the victim of plagiarism, especially to the point of proving copyright infringement, is rarely easy. Even with the most seemingly clear-cut cases, there can be factors that can muddy whether or not plagiarism took place and if it is actionable in court.
Because of this, it’s important to not ask “Did plagiarism take place?” and instead ask “What plagiarism can we prove?” When we look too long and hard at plagiarism percentages or word counts, we often miss the more important questions about plagiarism.
Nonetheless, if you feel like you’ve been a victim of plagiarism, this is the process you have to follow. It’s not always a very complicated one, sometimes each step is patently obvious, other times though, you must weigh each one carefully.
In the end, whether it’s easy or difficult, it’s important to square away these five steps before making an allegation of plagiarism, especially if you’re taking it to court.
While being a victim of plagiarism can be costly (both emotionally and practically), it’s not nearly as costly as making allegations that the evidence does not support.