Plagiarism, Copyright Infringement, and Fair Use
I frequently hear and see people use the word “plagiarism” to mean “copyright infringement.” This always bothers me, but when it comes from a respected source, like the New York Times (a few months ago), it really drives me nuts! The two are not the same, and to use the words interchangeably simply adds and perpetuates confusion to an already complicated area of law.
Plagiarism happens when you use someone else’s work in a way that suggests the work is your own. Plagiarism is an ethical issue, but it is not (generally speaking) a legal issue.
Copyright infringement happens when you use a protected work in a way that implicates one of the exclusive rights of a copyright owner (the rights to reproduce, create derivatives, distribute to the public, and publicly perform or display the work), unless, of course, your use is exempted from infringement by the law (under a statutory exception to the copyright owner’s rights, which are quite limited, or as a fair use). Copyright infringement is, of course, against the law.
Often the two go hand-in-hand, but not always. For example, your inclusion of an excerpt from someone else’s work in your own work may constitute a fair use, and thus not infringe copyright, but if your use suggests that the work is yours, you have committed plagiarism.
Even more frequently, I hear people confuse the concepts of plagiarism and copyright infringement. This comes in the form of the following question (or some variation thereof):
“If I credit the author, will be it be fair use?”
Crediting the creator of work you use is the right (ethical) thing to do, and it certainly won’t hurt a fair use argument, but it is not a consideration under any of the four fair use factors. It most definitely does not turn what would otherwise be an infringement into a fair use.
Here’s an extreme example to make the point:
If you make 500 copies of Donna Tartt’s The Goldfinch, without removing her name, and give them to 500 of your best friends, you’ve infringed the copyright despite not having committed plagiarism.
Using words correctly is important, because doing so helps us understand our world. In some circumstances, it’s more important than others. In a complex and often confusing area like copyright, using words correctly can mean the difference between understanding the law and increasing your misunderstanding.
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