Update (October 17, 2019) due to an increasing number of emails I receive regarding this article/topic:
Please note that I can not give any individual advice on whether something constitutes plagiarism or not. These cases are highly individual, and courts usually decide them on a case-by-case basis. I neither have the insight into your story (and/or the original work), nor do I have the legal expertise to decide whether a court would deem something similar enough to rule it plagiarism. If you have serious concerns about your work plagiarising another (enough that you would consider writing me an email about whether you need to change it), I would say you are already aware of striking similarities that exceed basic concepts or mere inspiration. You now have two options: going ahead with publication anyway OR consulting an attorney specialized in intellectual property rights to see if you are moving on safe legal grounds at least.
Today I want to write a post about plagiarism and art theft. Mostly because recently I have become victim of it quite a few times, but also because it’s a topic that not many people seem to have an understanding off.
So let me start out with a basic definition of plagiarism.
What is plagiarism?
Many people think that plagiarism only means copying another person’s sentence word by word. But legally it’s also plagiarism to take another person’s idea. Ideas, concepts or structure can also be plagiarized, provided they are an original composition.
The Legal Dictionary defines plagiarism as the following: The act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind.
Now why are there so many misconceptions about plagiarism then? It seems to be mostly because many people are under the impression that you can freely copy another person’s ideas as long as you don’t use their exact words. Which would explain myth #1.
Myth #1 – You can basically retell the exact story of Harry Potter as long as you don’t name your character Harry Potter.
Um, excuse me, what?
Big fat no.
I suppose that you could try doing that, but I’m pretty sure that J.K.Rowling would sue you into oblivion, and that this is exactly the reason why NOBODY HAS DONE THAT TO THIS DAY.
The reason for why this is utter bulls*it is quite obvious if you use your common sense: A story is composed of a lot more than just the names of the characters. There’s of course plot, narrative perspective, tense, conflict, character building, structure, setting and so on.
You can’t just take a story and change one or two minor aspects of it, and then pass it off as something you came up with. Per definition you didn’t, because you consciously copied Harry Potter. That is plagiarism.
Now it is true that basic concepts cannot be plagiarized. But basic concepts really means just that: basic. Example: J.K. Rowling wouldn’t be able to sue you if you wrote a story that took place in a school for wizards, or if you wrote about an orphan boy who discovers he has supernatural powers. Because those in itself are just basic concepts that aren’t protectable by law.
To take it further, let’s look at an example from modern fiction. Rick Riordan’s Percy Jackson and J.K.Rowling’s Harry Potter both use the same basic concept: teenage boy discovers that one or both of his parents were supernatural beings and that he has inherited their powers.
Yet this concept is indeed so basic that you can write two entirely different stories with it. And nobody would claim that Rick Riordan copied J.K.Rowling. That’s a basic concept.
As soon as you take more aspects from Harry Potter, though, you run the severe danger of being accused of plagiarism. And rightly so, because let’s face it, unless you have actually never heard of or read Harry Potter, the idea would indeed not have sprung from your own mind.
Myth #2 – Fifty Shades of Grey plagiarized Twilight
This is actually the other side of the coin and shows an equally wrong understanding of plagiarism. You can criticize Fifty Shades whichever way you want (and my readers and friends know how much I love to do just that ;) ) but it is not plagiarism.
Even in its originally published form “Masters of the Universe”, it was a transformative alternate universe work, not plagiarism. There’s a fundamental difference between the two, as I will explain under Myth #4.
So why isn’t it plagiarism?
Because the ‘you-can’t-just-change-the-name’-argument in #1 is also true from the opposite standpoint. If you take the characters of an already existing universe/world/work-of-fiction and put them into a completely new world that you created entirely on your own, where the characters have a different history and different experiences, and you don’t even need to know the source material anymore, you are per definition not plagiarizing. If anything, you are using character names that are borrowed from another work of art–and in a lot of cases these character names might not even be copyrighted. (Please refer to my article on Fanfiction and Copyright for a more detailed explanation.) Rename those characters and you have no ties to the original anymore. That’s not plagiarism.
Do you have a right to sell that story? Opinions still vary on that front. Some say yes, you absolutely do, others say you don’t.
This is how I see it:
What makes a character unique? In fiction writing (just as in the real world), our characters become who they are through a combination of start-out characteristics combined with the way they were brought up and life experiences (which equals story). Now, if you completely remove a character from their existing canon-world, and give them a different past, different background, different experiences, can that character even still be considered the same even if they still carried the same name?
The answer can only be: no.
Even if their looks are similar or the same, their experiences, their entire past and often even wishes, dreams and ambitions were changed. So if you renamed that character, you would have in fact an original new character with their own story. Now if you can do that, you do in fact own the rights to do with that story as you please. At least according to this article—and the fact that E.L. James still hasn’t been sued by Stephenie Meyer. ;)
In Fifty Shades, the case is a lot more complex of course. Let’s compare some basic concepts of the two novels/stories from the perspective of literary science:
|Twilight||Fifty Shades of Grey|
|POV||1st person||1st person|
|Tense||Past tense||Present tense|
|Plot||100-year old vampire falls in love with high-school student, but the nature of their existence forbids them to be together (humans are vampire’s prey). In the end, high-school student gives up her life/soul to become a vampire.||22-year-old college graduate meets successful billionaire Grey who introduces her into the world of BDSM. After lots of back and forth they have to negotiate a compromise to make their relationship work and try to work out some fundamental incompatibilities in character|
|Basic Conflict||Romeo/Juliet; forbidden love; impossible love||relationship drama; relationship compatibility; social acceptance of BDSM; Cinderella theme (poor girl/millionaire)|
I could probably go even deeper into the analysis, but I think from these basics you already get just how different these two stories really are. The common characteristics are that they take place in roughly the same region in the US (Portland and Seattle in the state Washington). And that the characters occasionally seem to have similar family-backgrounds. But those are some of the basic concepts that cannot be copyrighted—otherwise nobody would ever be allowed to write a story set in Seattle again, or a story about a man who was adopted as a child.
As different as Twilight and 50 Shades are, I would argue that at the most one ‘inspired’ the other—which is absolutely legitimate and has always been. Otherwise every artist who was inspired by something (meaning: literally every single one) would now owe royalties to someone else.
I recently watched a making-of of “Interstellar” in which Christopher Nolan said that what inspired him for this movie and the sci-fi genre was the movie “Contact” and other early sci-fi movies. So in essence without those movies, Christopher Nolan would have never made Interstellar. Does he owe those people royalties now? You see how ridiculous this kind of argument gets? ;)
Now as for fanfiction (or derivatives and transformatives as I like to call them): There are quite different legal opinions out there about whether or not fanfiction authors retain any rights over their material. Some state that fanfiction authors don’t have any rights at all. Others, such as the article I quoted above on “Legal Myths in the World of Fanfiction” say that they do own authorship rights to the words and plot ideas provided that the characters would still work if taken entirely out of the context of their source material.
Want to know if you own a character you created for a fan fiction story? Here’s the test. Can you remove the character and the plot from the original “world” and put it in a world of your own? If you can, congratulations! You own it so long as you do what E.L. James did and strip away anything you didn’t create. But if your characters rely on another author’s ideas in order for them to exist or function, you don’t own them.
As long as “your” characters and stories are set in a framework that belongs to someone else, you don’t own it.
If you ask those exact questions for Master of the Universe (Fifty Shades of Grey), you’ll see that Fifty Shades is entirely independent from the universe Stephenie Meyer created. Or, to make it even simpler, ask yourself: did you have to read Twilight in order to understand 50 Shades of Grey?
If the answer is no, then the story and characters are removed enough to work on their own and completely removed from the source material.
Now don’t get me wrong, there is actually fanfiction that blurs the line. A good example are stories which re-tell an episode of a popular television show from a particular character’s POV, because all the action and even character re-actions are duplicated from the original show. The authors merely add character thoughts we didn’t get to hear on the show—which might add a new aspect to the story.
However, I have never ever seen a writer trying to publish such a story as an original work for money, or even claiming that the whole thing was their idea. Usually, the writers credit the original creators, and the target audience are fans who are aware of the addressed source material. Fanfiction would not work another way.
So in a way, that type of fanfiction is not even relevant to the discourse because by crediting the original makers it is per definition the opposite of plagiarism.
Myth #3 – It’s ‘Inspiration’, it’s not plagiarism!
Whenever I hear this, I have a very hard time trying not to laugh. Yes, I have actually heard this one—and not for cases like the above Interstellar or Twilight/50 Shades scenario, in which it is actually just inspiration. So let me make clear here.
Inspiration and plagiarism are absolutely not the same. Nor should they ever be confused with one another.
Inspiration is building an entirely new world or story after having seen one basic concept in another piece of art.
Inspiration is: you’re watching “Interstellar” and get so fascinated by the black hole Gargantua in it that you decide, you want to write a story that has a black hole. You’re being inspired.
Plagiarism is: your ‘new’ story is basically a retelling of “Interstellar” since it uses enough of the same aspects, the same conflict and a similar plot. You are not being inspired anymore, you’re plagiarizing.
You can of course argue: Yes, but there’s only so many ways you can write a black hole story.
That is partly true because of certain underlying universal laws of physics that you can’t just ignore if you want to be taken seriously as a sci-fi author. However, I would argue that even using those laws of physics, there are still hundreds if not thousands of ways to write a story that hasn’t been told yet.
So if the only way to tell your story is to come up with a starship that goes through a wormhole to re-colonize a planet orbiting a black hole (which is exactly the Interstellar plot), I’d say,
You’re doing it wrong.
Remember what I said about basic concepts before? What it comes back down to is exactly that. You can and should let yourself get inspired by basic concepts. And nobody would ever accuse you of plagiarism if you wrote a completely new and original black hole story and later stated that you were inspired by “Interstellar” to write it.
That is, in fact, how most works of art came into existence.
Let me give you another example, and let’s stay in the world of sci-fi for that. Wormholes. If you’re a sci-fi fan you can name at least a couple of television shows that used wormholes. The concept is very basic. Babylon 5 has them. Star Trek (especially Deep Space Nine) has them. And most significantly of all, Stargate. All of these shows are built around the concept of a wormhole which marks one of the central points of conflict in the story.
And even though it is a very basic concept with limited applications, each show managed to make it something completely original. That is what I’m talking about; that’s what makes the difference between a basic concept and a combination of factors and concepts that build a universe.
Inspiration is not and cannot be used as an excuse to plagiarize. And if you are worrying that your story might be too similar to the one you were ‘inspired by’ I almost want to bet that you are plagiarizing. Like it or not.
Myth #4 – Nowadays, everything is plagiarized, because everything has been written in some form before.
I can’t even begin to fathom where this idea came from, but I did notice that it is primarily being used by authors who have no shame plagiarizing others.
Now, let me start out by saying that I studied cultural sciences and lit studies, so I consider myself a cultural/literary scientist. And yes, we cultural scientists do in fact agree that nowadays everything is derivative of something. Notice the word, though? Not plagiarism, DERIVATIVE.
That is, per definition, how culture works. We all grow up in a certain culture, we hear certain myths and stories as we grow up, and all of that influences us. We, and our ideas, cannot exist outside the culture we are tied into.
Think of it this way: Percy Jackson couldn’t exist without the stories and myths Homer wrote down in his Ilias. Twilight couldn’t exist without the pre-existing vampire myth made popular through authors like Bram Stoker (who in turn built his story on existing folk tales from Romania).
Culture is a huge interconnected organism. So every story that is being told nowadays has to be derivative of something. In fact, a story that didn’t rely on pre-existing symbols, concepts and myths probably wouldn’t work for us because we wouldn’t understand it.
Need an example? Try reading a piece a fiction from a completely different cultural background. Japan, Saudi Arabian, Korea or the like. You will see that you’ll only gain an in-depth understanding of the work if you have a profound understanding of the culture and traditions the author grew up with. If you don’t, a lot of aspects, references and doalogues will strike you as weird or maybe even non-sensical. Literature (and any other works of culture) can only be understood in the broader context of culture. And every work of art isn’t just built on culture, it also reflects and recreates it.
So, derivative means relying on an existing set of rules, symbols or conditions, and building your work of art on that. But derivative does not equal plagiarism. Plagiarizing means copying the ideas or words of another author and pretending they are your own.
Whether it’s legal or not to publish your derivative work depends on the current legal situation. The general rule of thumb is that works are in the public domain 70 years after the death of the author, and from that point on can be freely used to build on. (Quite simply put.)
And there’s your explanation for all the “Mr. Darcy” published fiction out there. If Jane Austen were still alive (or were dead for fewer than 70 years), all those books couldn’t be published for money but would have to be published under “fair use” terms just like every other fanfiction. Essentially there’s no literary distinction between modern fanfiction and that type of fiction; there’s only an economic distinction.
If Homer were still alive, the Percy Jackson books would be fanfiction. Everything in culture and literature nowadays is derivative of something. So the distinction of whether something is “fanfiction” or not is a rather modern, legal one, not a genre-bound one.
You could even go so far and say that it’s a legal trend and has only been problematic in recent times where ‘copyright’ doesn’t primarily mean authorship but ‘making money with a work’—which was never a concern up until the second half of the 19th century when pop-culture spawned the so-called dime novel and thereby gave birth to our modern idea of the author as a profession you can actually live of.
The problem with fanfiction nowadays is the following: according to many sources, some fanfiction authors retain the authorship rights for their ideas (such as authors of transformative or AU stories – see above under Myth #2). What they often don’t own is plain and simply the right to SELL THEIR STORY as long as they don’t remove or alter everything that connects the story to its original copyrighted source material.
So in essence, the entire legal discourse around fanfiction has a uniquely capitalist stamp on it. It’s about money and profit. Not about authorship rights or even plagiarism. No fanfiction author ever claims to have invented the source material their story is based on. Most of them even put a disclaimer on their work in which they credit the original authors and creators.
We just established in the beginning quote, that plagiarism means appropriating the ideas of another person as your own—which fanfiction authors per definition don’t do. No fanfiction author I’ve ever met has claimed to have invented the term Muggles, the starship Enterprise or the Stargate. So according to all legal definitions, fanfiction cannot be plagiarism per se.
Now let me get even deeper into the difference between derivative and plagiarism.
Imagine you write a story about Mr. Darcy being transported into modern England. Or Romeo and Juliet as ghosts who have to find each other in the underworld of Hades. Both are derivatives, because you essentially build on an existing work using your own ideas and concepts. And because the authors of the original materials have been dead for a long time, you can go ahead and sell it as you wish.
If you were to retell the story of Shakespeare’s Romeo and Juliet exactly, though, and publish it under your own name, then you would be plagiarizing.
Even with works in the public domain, you can still not publish them as your own. You could re-publish “Romeo and Juliet” as Shakespeare’s Romeo and Juliet (provided you only used Shakespeare’s original text and don’t use any notes or commentary added by other authors later), but you couldn’t publish it as Romeo and Juliet written by Kimberley Jackson.
And there you see that even the public domain protects authorship. Authorship is one right you can never give up as an author in most Western countries.
Many people argue that Twilight, for example, uses the general Romeo/Juliet concept (which brings us again back to basic concepts). That concept in itself can be reproduced as it has become firmly established in our cultures: two people fall in love, but there’s something fundamental (the causes of which are external and cannot be changed by the lovers) standing between them that prevents them from being together.
Popular themes here are for example: lovers from two different worlds, lovers from enemy families, etc. Basically we’re dealing with a preexisting external condition that the lovers can’t change or overcome. Such as Bella being human, and Edward being a vampire. Such as Romeo and Juliet being from two different families engaged in a feud. Such as the little mermaid being a mermaid, and the prince being human.
The resulting conflict in those stories is normally that the characters try to resolve that situation by altering those unchangeable outer conditions preventing them from being together—which leads to the demise of one or both of them (Romeo and Juliet both kill themselves; the little mermaid kills herself) or, if you’re dealing with a modern Disney-fied version made for teens, has the characters actually succeeding in changing their circumstances (The little mermaid wins the prince’s heart in Disney’s Ariel; Bella becomes a vampire and bridges the gap between her and Edward’s world in Twilight).
As you can already see from the above named examples
- The Little Mermaid
- Romeo and Juliet
all of these stories use the same underlying concept or principle. And yet they are as different as day and night. Nobody would ever say that Stephenie Meyer ‘plagiarized’ Romeo and Juliet.
So that is what cultural and literary scientists mean when they say nowadays everything is derivative of something.
I have no clue how on Earth this got so twisted that some people use it to validate stealing another author’s ideas, but apparently it did.
Probably one of those cases of “half-knowledge is more dangerous than ignorance”, because unless you understand cultural theory, it may indeed sound like it’s a carte blanche to copy other authors as you please.
So where does this leave us?
Plagiarism requires a conscious effort. That means, in order to plagiarize you have to know the source material you’re plagiarizing from. If you don’t, it’s indeed coincidence. Two people can have similar ideas.
So why not just use this self-test:
Do you spend a lot of conscious effort on NOT making a story sound too similar to an existing one that you are aware of, or removing similarities to an existing work that you are aware of?
Congratulations, you are most likely plagiarizing.
Why? Because 1. Apparently you are aware of the source material you’re copying ideas from. 2. You are also aware that your work is strikingly similar to an already existing one. And 3. You’re putting conscious effort into trying to make it sound less similar.
Those three conditions make your doing a conscious effort, and you a plagiarist per definition. (Remember the original definition of plagiarism as passing somebody else’s ideas off as your own.)
I can honestly say that in my entire writing life, I have never had to worry about removing similarities to an existing work of fiction from one of my stories, simply because I never felt compelled to re-tell an already existing story. What would be the purpose of that?
Does that mean that there are no other stories similar to mine out there? No, absolutely not. I’m sure if I started searching, I would find quite a few stories like mine. The key fact here is: I don’t know them, and that means the ideas I have are actually my own ideas presented in my unique way.
As soon as you KNOW the source material before writing, you are plagiarizing, because the idea is per se not your own idea, but one that you took from an already existing work. You can’t read about an idea and then claim that by reading about it, you happened to have the same idea. That’s not how ideas work—that’s how plagiarism works.
Plagiarism is conscious effort. It’s per definition: passing off another person’s ideas or words or composition (meaning a combination of ideas or aspects) as your own.
So unless you actually have an idea without having read about it beforehand, you either have to credit that work/person, or you are plagiarizing.
Does this mean I can accidentally plagiarize someone else’s work?
No. As I said two lines above: plagiarism is conscious effort. That means it’s only plagiarizing if you are aware of the source material before or during your writing process.
So if you have just read Harry Potter, and now decide you wanna write a story about an orphaned son of two wizards who attends a boarding school, then you are plagiarizing. Whether a legal claim can be made in the end depends on whether the author can prove you plagiarized and well you hide your plagiarism.
Plagiarism very much depends on intention and a conscious act.
Plagiarism is the intention to write a story just like or very similar to an already existing one.
If that intention is not there because you don’t know of the story that’s similar to the one you’re intending to write, you aren’t plagiarizing.
So if you have never heard of Harry Potter before in your life, and you write a story about an orphaned son of two wizards attending a boarding school, you have no problem. (Even though the chance that your story would be just like HP would be rather remote then.)
The chance that two people will have the same idea is quite likely nowadays. But the chance that two people will then use that idea to produce a nearly identical story, using a similar structure, plot, characters and conflicts, etc. becomes more and more remote the more aspects you add to the mix.
Simple rule: If you don’t know of a work, you can’t plagiarize it.
But if you do know of a work, you are plagiarizing, because it’s impossible that you have come up with the idea on your own—after all you had the idea after reading that other person’s work. So you didn’t have an original idea, but you adapted another person’s idea as your own.
Which is absolutely legitimate, especially in academic writing, as long as you credit the original author. And if you’re writing fiction doing that? You can still publish it as fanfiction under the terms of fair use by crediting the original author. But you will have to get used to the idea that you did not write an original story.
At best you produced a work of fanfiction. At worst you claimed another author’s idea—which they undoubtedly put lots of work and sweat into—as your own. And by that you have revoked the right to call yourself an author.
Call me old-fashioned, but I firmly believe that artists of any kind (this includes writers) should follow a simple code of honor:
Do not steal another writer’s ideas or stories.
(I am neither a lawyer nor a judge therefore none of the advice in this article is legally binding. I composed this article to the best of my knowledge using above cited legal sources and research materials.)