From Plagiarism Today:
If there’s one thing that I’ve learned over the past 13 years of running Plagiarism Today, it’s that a LOT of people think they’ve been the victim of plagiarism.
However, those who are right and can prove it are the exception to the rule. Most either are seeing plagiarism where there is none or simply lack the evidence to prove it.
Because of this, most lawsuits that are brought over copyright infringement related to plagiarism are quickly tossed. Whether it’s against Chard Harbach, JK Rowling or Emma Cline, the lifespan of these claims tend to be pretty short.
The reason is that proving you are a victim of plagiarism, enough to convince a court of law, is extremely difficult. So, before you either hurl accusations or, worse yet, file a lawsuit, it makes sense to see if you can actually prove your case.
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Step 1: Prove Your Idea/Work is Original
Before moving anywhere with your claim, it’s important to prove that whatever of yours you feel was copied is original.
If you’re dealing with sections of verbatim text or other content, this is actually pretty simple to do. You can simply check the content for duplicates and see if it appeared anywhere else before you.
However, things get much trickier when you’re dealing with ideas. Proving that an idea is new to you is nearly impossible. While details can point to the development of a unique character or story, to show a broad idea is unique to you an uphill battle.
But, no matter what you are claiming was plagiarized, it’s important to first check and make sure it is truly original to you. While plagiarizing an unoriginal idea or work is still a plagiarism, it may mean that you’re not the best person to bring the case forward.
Step 2: Show What Was Copied Can Be Protected
This one is only really important if you’re considering a lawsuit, but, if you are, it’s important to make sure that whatever you are claiming was plagiarized is protectable under an intellectual property right.
Most of thee time, this will mean proving that your work is protectable under copyright. That, in turn, will mean understanding the idea-expression dichotomy in copyright.
That distinction means that ideas are not protectable under copyright though the expression of those ideas are. This means a specific arrangement of words, a photograph, a song, etc. are protectable but the idea to create such a work is not.
There’s obviously a great deal of gray area with this and a lot of complexity. For example, characters can be protected by copyright and a work can be considered an unauthorized derivative work if it a largely new creation based upon an original work.
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Step 4: Prove That It’s Copied
Finally, we get to look at the actual overlap between the works. This is the part that most people associate with proving plagiarism even though, as you can see, it’s actually one of the latter steps.
To that end, to prove that the work was copied you have to prove two things:
- That there’s no way the works could have been an independent creation.
- That the work was copied from you (and not some mutual source).
The second issue looks back to step one. You need to make sure that whatever you are claiming is copied is unique to you. If there’s a common source that predates yours, then there isn’t much that you can say.
However, the first point is also a challenge. Overlapping words does not, by itself, prove plagiarism. There are clichés, common phrases, titles, jargon and other reasons that words might overlap without any plagiarism.
In short, this challenge becomes about proving so many strong similarities that coincidence becomes either impossible or extremely improbable. The case of Instinct plagiarizing Bones is an excellent example of this. One or two of the similarities could be easily dismissed, but the long list of very specific overlaps makes it impossible to ignore.
Link to the rest at Plagiarism Today