Chapter 5—Plagiarism

“Literary crimes are difficult to define accurately: for example, piracy and plagiarism often overlap. Perhaps one may venture to mark the difference roughly by saying that the plagiarist always hopes that he will not be found out, whilst the pirate makes no secret of his crime.” ^{1Literary Ethics by H. M. Paull, 1928, p. 45.} The major distinction between the two (piracy and plagiarism) from a legal stand-point is in the intention of the subsequent writer, as is perhaps best evidenced by the following statement from Farmer v. Elstner, 33 F. 494, 13-16 C.O. Bull. 970, 971 (1888):RRPCI 4.2

“We have felt considerable difficulty in reaching a satisfactory conclusion in this case from the fact that the piracies, though numerous, are not extensive, and from the further fact that defendant’s pamphlet was evidently not intended to supersede or in anyway interfere with the sale of, the elaborate and instructive work of the plaintiff. Where defendant’s publication is designed to rival or compete with plaintiff’s in the market, courts are astute to protect the technical rights of the plaintiff to his composition, and will even enjoin an imitation of his general plan and arrangement, though there be no plagiarism or sentences or ideas. Where defendant has been guilty of a complete or substantial reprint of plaintiff’s work, no difficulty is encountered in granting an injunction; but where the alleged violation consists in excerpts from the plaintiff, the court is bound to consider not only the quantity and quality of the matter appropriated, but the intention with which such appropriation is made, the extent to which the plaintiff is injured by it, and the damage to the defendant by an injunction.”

And further in the same case:RRPCI 4.3

“Regarding the intent with which the appropriation is made, it is obvious that the use of a certain amount of an author’s production may be perfectly fair and legitimate in one case, while the use of a similar amount in another case might be unlawful.” (emphasis the courts)

Thus, the manner of taking, the extent of the taking, the intent involved, and the damage done are all factors from which might be determined the existence or nonexistence of plagiarism. However, the intention of the appropriator is of no moment relative to the legal issue of piracy/copyright infringement.RRPCI 5.1