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                           On Plagiarism
In the wake of recent scandals some distinctions are in order

                                                                    by Richard A. Posner

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 buriedunder an avalanche of criticism. The scandal will soon be forgotten, but it leaves in itswake 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 acollege or university. New computer search programs, though they may in the longrun 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 byproperty that belongs to someone else—namely, the holder of the copyright on thework that the infringer has copied. A pirated edition of a current bestseller is a goodexample of copyright infringement. There is no copyright infringement, however, ifthe “stolen” intellectual property is in the public domain (in which case it is notproperty at all), or if the purpose is not appropriation of the copyright holder‟srevenue. The doctrine of “fair use” permits brief passages from a book to be quoted ina book review or a critical essay; and the parodist of a copyrighted work is permittedto copy as much of that work as is necessary to enable readers to recognize the newwork as a parody. A writer may, for that matter, quote a passage from another writerjust to liven up the narrative; but to do so without quotation marks—to pass offanother 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, itmight be of uncopyrightable work—for example, of an idea.) If I reprint Hamletunder 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 famousdescription 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 appareled as painters do set forth the god Cupid, with little fans intheir 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 Ēdouard Manet, whose works from the 1860s “quote” extensively from Raphael, Titian, Velásquez, Rembrandt, and others, of course without express acknowledgment.

If these are examples of plagiarism, then we want more plagiarism. They show that not all unacknowledged copying is “plagiarism” in the pejorative sense. Although there is no formal acknowledgment of copying in my examples, neither is there any likelihood of deception. And the copier has added value to the original—this is not slavish copying. Plagiarism is also innocent when no value is attached to originality; so judges, who try to conceal originality and pretend that their decisions are foreordained, “steal” freely from one another without attribution or any ill will.

But all that can be said in defense of a writer who, merely to spice up his work,incorporates passages from another writer without acknowledgment is that the  readability of his work might be impaired if he had to interrupt a fast-paced narrativeto confess that “a predecessor of mine, ___, has said what I want to say next betterthan I can, so rather than paraphrase him, I give you the following passage, indentedand in quotation marks, from his book ___.” And not even that much can be said indefense of the writer who plagiarizes out of sheer laziness or forgetfulness, the latterbeing the standard defense when one is confronted with proof of one‟s plagiarism. 

Because a footnote does not signal verbatim incorporation of material from the source footnoted, all that can be said in defense of the historians with whom I began is that they made it easier for their plagiarism to be discovered. This is relevant to how

severely they should be criticized, because one of the reasons academic plagiarism is so strongly reprobated is that it is normally very difficult to detect. (In contrast, Eliot and Manet wanted their audience to recognize their borrowings.) This is true of the student‟s plagiarized term paper, and to a lesser extent of the professor‟s plagiarized scholarly article. These are particularly grave forms of fraud, because they may lead the reader to take steps, such as giving the student a good grade or voting to promote the professor, that he would not take if he knew the truth. But readers of popular histories are not professional historians, and most don‟t care a straw how original the historian is. The public wants a good read, a good show, and the fact that a book or a play may be the work of many hands—as, in truth, most art and entertainment are—is of no consequence to it. The harm is not to the reader but to those writers whose work does not glitter with stolen gold.

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