Comment April 2002

On Plagiarism

In the wake of recent scandals some distinctions are in order

Recently two popular historians were discovered to have lifted passages from other historians' books. They identified the sources in footnotes, but they failed to place quotation marks around the purloined passages. Both historians were quickly buried under an avalanche of criticism. The scandal will soon be forgotten, but it leaves in its wake the questions What is "plagiarism"? and Why is it reprobated? These are important questions. The label "plagiarist" can ruin a writer, destroy a scholarly career, blast a politician's chances for election, and cause the expulsion of a student from a college or university. New computer search programs, though they may in the long run deter plagiarism, will in the short run lead to the discovery of more cases of it.

We must distinguish in the first place between a plagiarist and a copyright infringer. They are both copycats, but the latter is trying to appropriate revenues generated by property that belongs to someone else—namely, the holder of the copyright on the work that the infringer has copied. A pirated edition of a current best seller is a good example of copyright infringement. There is no copyright infringement, however, if the "stolen" intellectual property is in the public domain (in which case it is not property at all), or if the purpose is not appropriation of the copyright holder's revenue. The doctrine of "fair use" permits brief passages from a book to be quoted in a book review or a critical essay; and the parodist of a copyrighted work is permitted to copy as much of that work as is necessary to enable readers to recognize the new work as a parody. A writer may, for that matter, quote a passage from another writer just to liven up the narrative; but to do so without quotation marks—to pass off another writer's writing as one's own—is more like fraud than like fair use.

"Plagiarism," in the broadest sense of this ambiguous term, is simply unacknowledged copying, whether of copyrighted or uncopyrighted work. (Indeed, it might be of uncopyrightable work—for example, of an idea.) If I reprint Hamlet under my own name, I am a plagiarist but not an infringer. Shakespeare himself was a formidable plagiarist in the broad sense in which I'm using the word. The famous description in Antony and Cleopatra of Cleopatra on her royal barge is taken almost verbatim from a translation of Plutarch's life of Mark Antony: "on either side of her, pretty, fair boys apparelled as painters do set forth the god Cupid, with little fans in their hands, with which they fanned wind upon her" becomes "on each side her / Stood pretty dimpled boys, like smiling Cupids, / With divers-colour'd fans, whose wind did seem / To glow the delicate cheeks which they did cool." (Notice how Shakespeare improved upon the original.) In The Waste Land, T. S. Eliot "stole" the famous opening of Shakespeare's barge passage, "The barge she sat in, like a burnish'd throne, / Burn'd on the water" becoming "The Chair she sat in, like a burnished throne, / Glowed on the marble."

Mention of Shakespeare brings to mind that West Side Story is just one of the links in a chain of plagiarisms that began with Ovid's Pyramus and Thisbe and continued with the forgotten Arthur Brooke's The Tragical History of Romeus and Juliet, which was plundered heavily by Shakespeare. Milton in Paradise Lost plagiarized Genesis, as did Thomas Mann in Joseph and His Brothers. Examples are not limited to writing. One from painting is Edouard Manet, whose works from the 1860s "quote" extensively from Raphael, Titian, Velásquez, Rembrandt, and others, of course without express acknowledgment.

Presented by

Richard A. Posner

Richard Posner is an author and federal appeals court judge. He has written more than 2500 published judicial opinions and continues to teach at the University of Chicago Law School. More

Richard A. Posner worked for several years in Washington during the Kennedy and Johnson Administrations. He worked for Justice William J. Brennan, Jr, the Solicitor General of the U.S., Thurgood Marshall, and as general counsel of President Johnson's Task Force on Communications Policy. Posner entered law teaching in 1968 at Stanford and became professor of law at the University of Chicago Law School in 1969. He was appointed Judge of the U.S. Court of Appeals for the Seventh Circuit in 1981 and served as Chief Judge from 1993 to 2000. He has written more than 2500 published judicial opinions and continues to teach at the University of Chicago Law School. His academic work has covered a broad range, with particular emphasis on the application of economics to law. His most recent books are How Judges Think (2008), Law and Literature (3d ed. 2009), A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009). He has received the Thomas C. Schelling Award for scholarly contributions that have had an impact on public policy from the John F. Kennedy School of Government at Harvard University, and the Henry J. Friendly Medal from the American Law Institute.

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