An indignant Barbara Chase-Riboud filed a $10 million copyright-infringement suit against Steven Spielberg and the makers of Amistad in October, claiming that the movie contained characters and scenes unique to her historical novel about the slave rebellion. In 1991, she brought a similar suit against a playwright and won. Last week, the New York Times accused Chase-Riboud herself of pinching several paragraphs from a nonfiction work for her 1986 book, Valide: A Novel of the Harem. Chase-Riboud acknowledged her debt to the previously published work, but claimed that she had done nothing wrong because the book was a "reference" and her novel was intended to be a "seamless narrative using both documents and fiction."
When Did Borrowing Become Theft?
Prior to the 18th century, writers borrowed freely from each other without shame or punishment. (The Latin word plagaria referred only to the act of physical kidnapping.) Shakespeare borrowed passages from Plutarch and contemporaries. Books were copied by hand prior to the rise of the printing press, and amanuenses were given liberty to rework texts. England passed the first copyright laws in 1709, as mechanical reproduction of works and new ideas about individuality became widespread. These laws provided legal remedies for authors--writers and composers mainly--who believed their works had been unfairly lifted. The U.S. Constitution required Congress to pass similar copyright laws.
Copyright laws prohibit plagiarism. The courts have ruled that a work cannot be legally copied if it is 1) an original, creative product--not merely a fact or something found in nature, like the sound of the wind, or 2) written or recorded--not just an idea. Fifty years after authors die, their works enter the "public domain" and are no longer protected by law.
Plagiarized? Prove It!
Proving plagiarism in the United States requires the plaintiff to show that 1) the defendant had access to the earlier work and 2) the defendant's work bears a "substantial similarity" to the plaintiff's original. It sounds like a legal blur because it is. Different courts have different opinions on what constitutes "substantial similarity." For example, jazz drummer Bernard "Pretty" Purdie filed a copyright-infringement suit against a rapper who lifted a lone cymbal crash from one of Purdie's recordings. He claims that his cymbal crash--a single beat--is so recognizably his that any use of it violates his copyright.
When Is Borrowing Just Borrowing?
Parody--as long as it is immediately recognizable as parody--is largely exempt from charges of copyright infringement. Also, the doctrine of "fair use" allows writers to quote limited sections of a work, as long as it is germane, properly attributed, and doesn't undercut sales of the original. The courts ruled that The Nation exceeded its fair-use rights in 1985 when it excerpted key sections of Gerald Ford's memoir in an article that was published slightly before Ford's book reached stores. The courts can be as fuzzy about what constitutes fair use as they are about what constitutes substantial similarity.
I Think I've Been Plagiarized and I Wanna Sue. What Are My Chances of Winning?
Slim. In practice, the courts find infringement only in instances where language, images, or music were lifted wholesale. They rarely consider cases in which a character was copied or a plot was stolen. Thousands of writers bring suit each year claiming their copyright has been violated, but almost none win satisfaction in court. However, the courts strictly police the unlicensed "sampling" of music (the insertion of a passage into another artist's musical collage). Book and software pirates are prosecuted under the copyright laws, but pirates are not really plagiarists.
Who's Minding the Store?
Most professional and academic groups (Writers Guild of America, American Bar Association, American Historical Association, etc.) investigate formal charges of plagiarism. Reprimands can come from the associations or from colleges and universities themselves. Accusations of plagiarism seem to be the greatest deterrent.
Some say accusations of plagiarism fly too freely. In a celebrated case, Abraham Lincoln biographer Stephen Oates was said to have ripped off a widely read 1952 Lincoln biography by Benjamin Thomas. In 1991, the American Historical Association criticized Oates for not adequately footnoting his use of Thomas' book. No legal charges were brought. (Click for a comparison of passages that the historians considered most damning.)
Plagiarism on the Silver Screen
Most copyright suits in the entertainment industry are nuisances, but not all. A biographer of William Randolph Hearst claimed that Citizen Kane screenwriters Orson Wells and Herman Mankiewicz plagiarized him. The author of a 1941 nonfiction book about swindlers filed copyright-infringement charges against the screenwriter of The Sting in 1973. Look Who's Talking screenwriter/director Amy Heckerling was accused of stealing whole passages of dialogue from a screenplay shown to her three years before her film's release. These cases, like most credible suits brought against the studios, were settled out of court.
To ward off lawsuits, directors and producers avoid signing rejection letters, making it difficult to prove that they had prior access to the material, a legal prerequisite to prove copyright infringement. (As a gesture of kindness, the actor/producer Michael Landon signed rejection letters, some of which became the basis for expensive litigation against him.) Still, examples of Hollywood's sloppiness and disrespect for intellectual-property rights abound, as Film Comment magazine proved with this prank in the '80s: It shipped the screenplay of Casablanca to 85 agents. Only 33 of them recognized it as the basis for the Bogart film; 3 agents offered to represent it.
Many alleged victims of plagiarism are later accused of having plagiarized. For instance, David Lodge accused a romance writer of stealing the plot from his novel Nice Work. Later he admitted that he had borrowed it himself from a 19th-century novel.
Author Thomas Mallon argues that plagiarism is pathology, akin to kleptomania. Accused plagiarists are often repeat offenders. Stephen Oates faced accusations of plagiarism in his biographies of Lincoln, William Faulkner, and Martin Luther King Jr. Poet Neal Bowers was plagiarized by a writer who submitted a half-dozen of his poems to different publications. Plagiarists want to get caught. Most steal from obvious sources (from their colleagues or authoritative works). Academics plagiarize more regularly than nonacademics, prompting Mallon's theory that professors are let off the hook to plagiarize again because their colleagues are too embarrassed to punish them.
Meanwhile, Back at the Amistad Case
Chase-Riboud's suit claims that the film's screenwriters read her historical novel about the slave rebellion, Echo of Lions, and appropriated its fictionalized characters and plot twists. In a legal brief, her lawyers claim that:
1) Credited screenwriter David Franzoni received a copy of Echo of Lions.
2) Franzoni worked with Punch Productions for six to eight months as a writer on the "Echo of Lions Project" while Punch was licensed to use Chase-Riboud's book and helped pitch this project to Warner Bros.
3) Franzoni's screenplay for Amistad contains historical "errors" also contained in Echo of Lions, including:
a) a letter from Queen Victoria to President Martin Van Buren;
b) the portrayal of the interpreter as a person that speaks near-perfect English; and
c) the number of children Cinque had.
4) Amistad and Echo of Lions contain the same fictional character--a wealthy, erudite black man involved with the printing of abolitionist literature.
5) An early Amistad shooting script was titled "The Other Lion."
A motion to block the opening of Amistad was shot down by a U.S. District Court judge who found that 1) the similarities between the two works were not substantial 2) fictional characters cannot be copyrighted, and 3) Amistad's screenwriters rendered the similarities irrelevant.
The judge ruled that the suit has virtually no likelihood of success.