Equipping Writers for Success
The Writing Life
The Writing Life
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by Moira Allen
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Sadly, incidences of online copyright infringement seem to be growing more and more common. Following are just a few of the incidents I've encountered in the last year:
If you discover that your work has been stolen, your first question is likely to be, "What can I do?" The answer is often "it depends."
Defining Copyright Infringement
The Rainwater Press glossary of publishing terms defines copyright infringement as "When another party besides the copyright owner reproduces a copyrighted work, in whole or in part, without the copyright owner's permission." Another type of infringement is plagiarism, which Seattle Central Community College defines as "Using another author's ideas or words without proper documentation; representing someone else's creative work (ideas, words, images, etc.) as one's own, whether intentional or not." While the first example above is a case of unauthorized reproduction, the other three examples are all cases of plagiarism.
Some cases of copyright infringement are unintentional. Many are the result of ignorance on the part of what I call "clueless copiers." Often, these infringers are not even writers, and may have only the vaguest notion of what copyright means. Many mistakenly believe that anything posted on the Web is free to be used or passed on (e.g., by e-mail). This category of infringer includes many well-meaning Web hosts whose goal is to pass on useful information, and don't realize that they need to ask permission before doing so. (In fact, many are convinced that they are actually doing authors a favor by posting their material!)
Conversely, it is difficult to believe that many incidents of plagiarism are "unintentional," let alone well-meaning. It is difficult to imagine, for example, that a university professor could be completely unaware of the definition of plagiarism, and thus (as he claimed) have no idea that he was doing anything wrong by copying articles from other Web sites, removing the authors' bylines, and incorporating those articles into his own material. Nor can one take seriously the outraged cries of innocence from the woman who copied an article from one e-mail newsletter and submitted it to another under her own name, or the man who cobbled together an article from three published pieces by three separate authors and submitted it as his own.
It can help to recognize what type of infringer you are dealing with when you discover that your work has been "stolen." If you are dealing with a "clueless copier" who honestly doesn't realize that it's wrong to post someone else's material without permission, your chances of working out a solution with that individual are often fairly high. (Even clueless copiers can prove unreasonable, however, as the pet writer discovered in her attempts to persuade an infringing Web host to remove her material.) If, however, you are dealing with someone who knowingly passes off someone else's work as their own, your chances of persuading that person to acknowledge the theft or compensate you for the infringement are extremely slim without actual legal action.
Surfing for Infringements
Ironically, however, a work's very accessibility online is also at times its best protection; your readers are likely to be consumers of similar online publications, and therefore likely to catch a writer who attempts to "borrow" material from one to sell to another. On several occasions, I've learned of an infringement of my own work from an alert reader who has noted a similarity between something I've posted and something posted under another name on another website (such as a pastor who posted his "sermon" on pet loss that was taken verbatim from an article on my pet loss website).
The Internet also offers an unprecedented ability to track down "original" sources of "borrowed" material. An intensive search using a few well-chosen keywords from the suspect article can often turn up the original source.
By the same means, you as a writer can take steps to safeguard your own material. Every so often, it's a wise idea to select a few key phrases or names from one or more of your articles and run a search online to see whether these phrases "turn up" somewhere they shouldn't. Proper names are an excellent search tool; if, for example, you've written about a specific person, company, or location, these details are not likely to be altered in a "stolen" article. Also, search now and then on your own name, to determine whether someone is using your material on their website without permission. (This is often done with the best intentions, and no intent to "steal;" people often mistakenly believe that they can post "good content" on their site without permission from the original author.)
Before You Act
When one discovers an unauthorized use of one's material, one's first impulse is often to fire off a furious letter to the infringer. Before doing so, however, it's a good idea to stop, take a deep breath, and analyze the situation more carefully. Take the time to review your options and develop a plan.
First, check your contracts. Make sure that the use of the material really is unauthorized -- i.e., that no one else had the right to authorize that use. If you have sold all rights to your material, or if you have granted a publication "nonexclusive electronic distribution rights," then it is possible that the "infringer" could have obtained permission from your publisher. Check with the publisher first to make sure that this is not the case. If you have transferred your copyright entirely (e.g., through a work-for-hire agreement), then you should contact the publisher of the work, as the infringement is against the copyright holder rather than the author.
Next, check your reprint records. I've known more than one author who has angrily accused a Web host of copyright infringement -- only to discover that they had, in fact, authorized the use a couple of years earlier and either forgotten about it or lost track of the correspondence. So unless you have a firm policy of never authorizing that type of use, check your files!
If the infringement is actual plagiarism, start gathering any records that will help you prove your claim to the material, such as contracts, editorial correspondence, manuscript files, published clips, or dated printouts of the material if it appeared online. Since most online plagiarism involves the theft of published material, your best claim is to be able to prove that the material was originally published under your name.
Another step you may wish to take is to search the infringer's Web site for other stolen material. If the infringer is removing bylines or passing off stolen material as his or her own, try running a search on a distinctive phrase or two from other articles on the site. Chances are, you'll turn up the original. Make contact with the authors of the infringed material; they will be glad to know about the infringement, and often willing to help in your campaign to end the infringement. There is strength in numbers!
Finally, before you contact the infringer, make a record of the infringement itself. Print out copies of the infringed material, and make sure that your printer is set up to show the date on which the material was printed and the URL of the Web site. More than once, infringing material has simply "disappeared" as soon as the author makes contact.
Only the actual copyright holder can initiate an action against a copyright infringement. Your editor can't do it for you. It's up to you to make contact, and to state your demands.
First, decide what, exactly, you wish to accomplish. Do you wish to have the material removed from the infringer's site? Are you willing to allow the material to remain where it is as long as you're given proper attribution? Or do you wish to be paid for the use of the material?
You must also determine how far you are willing to go to achieve your goals. If the infringer refuses to accede to your request, how much time and effort are you willing to invest in the battle to come? If the only means of accomplishing your goal is to take the infringer to court, are you honestly prepared to pay the cost of such an action?
The first person you should contact about an infringement should be, if at all possible, the infringer. If, for example, your goal is to have a Web host remove your material from his site, you should first contact that person directly with your request. Copyright lawyer Charles Petit offers several sample infringement-notification letters in his article, Protecting Your Work Against Electronic Pirates. In many cases, this is all that is necessary to resolve the issue.
If you are unable to locate contact information for the infringer, or if the infringer does not respond or accede to your request, you'll need to take matters a step farther. In the case of the plagiarizing professor, for example, the authors contacted the professor's department chair. If your material has been published under another name, contact the editor of the publication. Most editors will be horrified to learn that they have published plagiarized material, and will be more than happy to remove it. Some may even offer compensation to the original author. More importantly, this serves to notify the editor that they are dealing with a plagiarist -- which will generally ensure that at the very least, the infringer will never be able to publish anything else in that venue!
If you cannot locate a "higher authority" to help you, the next step is to contact the ISP that hosts the infringing Web site. Under the terms of the Digital Millenium Copyright Act, ISPs are required to remove material if they are notified that the material infringes upon someone's copyright. The infringement does not have to be "proven" (e.g., in court); the statement by the author that the material is an infringement is sufficient. Petit notes that "The notice of infringement ... makes the ISP responsible once notified of the infringement in writing, and is signed 'under penalty of perjury.'"
If you are unable to obtain satisfaction by contacting the infringer, contacting someone in authority over the infringer, or contacting the infringer's ISP, then often the only recourse left is legal action. However, many would say that the time to consult a lawyer is not when all other options have failed -- but before you even begin to attempt to deal with a copyright infringement. Unfortunately, for many authors this option often appears too intimidating or too expensive -- which is, perhaps, why so many pirates still sail the electronic seas!
Sidebar: When Your Words are Stolen...
I came across a piece of published work that sounded very familiar as I read it. So I looked back and found those words in an article I wrote several years ago for a magazine. Even the sources I quoted and the books I referred to were used. Some of the words were paraphrased, but most of the information was mine. I have had this on my mind for about a year and have not said a word to anyone. I didn't know what to do. I don't want to be responsible for ruining some writer's career. Did the publisher know, or just the writer? What should I do?
Since a year has gone by since you discovered what appears to be plagiarism, your options may be limited. Here are some points to consider, however, in making your decision.
1) Are you ruining someone's life? Let's think about this. If you stole someone else's article, had it published in a magazine, got paid for it, and then got "caught" by the original author, would you consider your life unfairly ruined? Would you "never write again"? Or would you, perhaps, think more carefully about stealing again? To look at it another way, if someone broke into your house, and was caught with your property, would you be more concerned about ruining the burglar's life, or (a) recovering your goods and (b) making sure this person didn't break into another person's house?
Plagiarism is theft. It is not research, it is not a shortcut to getting ahead or getting published. It is theft, plain and simple. It is not an act deserving of sympathy or respect.
2) Can you do something about it? That's a more difficult question. If you can prove the authorship of the original material (which, you said, came from a published article of yours, which is all the proof you need), you could, theoretically, file a lawsuit against the plagiarist. Whether it is worthwhile to do so is another question, however. Much depends on (a) how much the plagiarist "gained" from the theft and (b) how much you have lost, if anything.
For example, if your article turned up minus your byline (or under another byline) in a small "club" publication that pays nothing for contributions, it is plagiarism, but you would not be able to prove a "financial" damage from such use. So, you'd probably just want to write it off as an annoyance. However, if someone publishes your work under their name in National Geographic, they have made a bunch of money that you could have made by selling the same article. Therefore, you could prove damages.
3) Did the publisher know? Probably not. Publishers have no way of checking submitted material to determine whether it is stolen from another source. Chances are, the article sold because it was a good, publishable article -- as you've already proven by selling it the first time. However, if the publisher is still doing business with this author, the publisher would probably want to know, as the publisher might ultimately be made liable if the author is stealing from other sources besides you. So, you might want to contact the publisher purely as a means of providing information. Include a copy of the original article (yours) along with the pirated article for comparison. If you aren't expecting any "damages" from the publisher, make this clear. However, you might want to ask the publisher to issue a statement that gives credit to you as the actual author of the piece -- something that the publisher can do at no cost to them.
4) Does the original writer know? Of course! Again, don't succumb to misplaced sympathy here. It's easy to inadvertently quote a single phrase or paragraph -- say, a line of dialogue or a description -- simply because it stuck in your mind and you've forgotten that you actually read it somewhere. It is not possible to copy an entire article, or most of an article, complete with references, by accident. That is not a "fair use" issue, or "research." The fact that some phrases were changed or "paraphrased" may even have been the result of editing by the publisher; the original manuscript might have been identical to your original.
Whether you want to attempt to take action against the original writer is, again, up to you. Again, usually the key issue is that of financial damage -- taking someone to court for plagiarism generally isn't worth it, unless the financial damages are high enough to justify the expense of taking legal action.
DISCLAIMER: This article should not be considered legal advice or as a substitute for legal advice. The best place to get information on how to deal with a copyright infringement is from a copyright lawyer.
Portions of this article originally appeared in The Writer.
Moira Allen is the editor of Writing-World.com, and has written nearly 400 articles, serving as a columnist and regular contributor for such publications as The Writer, Entrepreneur, Writer's Digest, and Byline. An award-winning writer, Allen is the author of eight books, including Starting Your Career as a Freelance Writer, The Writer's Guide to Queries, Pitches and Proposals, and Writing to Win: The Colossal Guide to Writing Contests. In addition to Writing-World.com, Allen hosts VictorianVoices.net, a growing archive of articles from Victorian periodicals, and The Pet Loss Support Page, a resource for grieving pet owners. She lives in Maryland with her husband and the obligatory writer's cat. She can be contacted at editors "at" writing-world.com.