Caught smuggling Picasso on his yacht, Spanish billionaire collector gets €52m fine and 18 months in prison

From The Art Newspaper:

The Spanish billionaire who tried to smuggle a Picasso painting out of Spain has been sentenced to 18 months in prison and fined €52.4m. Jaime Botin, part of the Santander banking dynasty, was convicted by a court in Madrid earlier this week.

The work, Head of a Young Woman (1906), was seized from Botin’s yacht, known as Adix, off the coast of Corsica, France, in 2015. According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as “national treasures”.

. . . .

According to Bloomberg, prosecutors argued that Botin, who bought the work in 1977, was smuggling the painting out of Spain and hoped to sell the piece at a London auction house. But Botin said he was taking the painting to Switzerland for safekeeping.

The work was originally due to be sold at Christie’s London in February 2013, but the Spanish culture ministry subsequently barred the work from being taken abroad. Ownership of the work has since been transferred to the Spanish state.

Link to the rest at The Art Newspaper

With Friends Like Wyden

From The Illusion of More:

Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights.  Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration.  But if that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.  

The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos that I have seen.  In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act.  After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum.  First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.

From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers.  In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts. 

. . . .

Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising.  Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY.

. . . .

So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills.  For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings.  A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing. 

. . . .

On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve.  After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo.  “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.” 

I know.  We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice.  But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland.  On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works.  “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me.  “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.” 

So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve.  A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit. 

Link to the rest at The Illusion of More

Maradona successfully sues Dolce&Gabbana over unauthorized use of his name on a jersey

From The IPKat

Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.

The reason?

The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.

. . . .

Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:

 Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.

Link to the rest at The IPKat

Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.

Briefly, there are two classes of potential claims if you use the name of a real person.

In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.

The two types of claims are usually characterized as follows:

1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.

2. “Invasion of Privacy: Appropriation of a Name or Likeness

An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.

To succeed in an appropriation lawsuit, you must prove that:

1. You didn’t grant permission for the use of your identity.

2. The defendant utilized some protected aspect of your identity.

(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)

3. The defendant used your identity for their immediate and direct benefit.

(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.

PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.

Reedsy is one such site.

Here, for example, is a suggestion for an Old Celtic female character:

Donnag Ó Mocháini

First name means: “World ruler.”

And a male Hindu god:

Yama

First name means: “Buffalo-headed lord of death.”

And a Dragon:

Draak

Which means: “That nasty lawyer who representeded my husband in our divorce last year.”

Greasy “Steamvader” Has Lucasfilm Seeing Smoke

From Pirated Thoughts:

Who am I to judge someone’s trademark but this one does not roll off the tongue, at all. Lucasfilm has taken the first step to oppose one long trademark based off of a Star Wars’ quote: GREASE, I AM YOUR FATHER STEAMVADER.

. . . .

A residential professional grease company (who knew this was even a thing, I mean, how many turkeys are you deep frying for Thanksgiving???) has filed a trademark registration application for the phrase GREASE, I AM YOUR FATHER STEAMVADER. The phrase is not explained on the company’s website nor is it very prominent. In fact, in the in use specimen filed with the Trademark Office, the trademark cannot even be seen on it.

. . . .

Nestor Lopez of Lopez & Lopez Contractors, Inc. filed the mark in May 2019. A trademark attorney would probably have told him to expect some pushback from Disney but who needs an attorney. The grease cleaning company faces a pending opposition from Lucasfilm over the trademark. Lucasfilm has taken the first step to oppose the mark and filed a request for an extension of time to oppose. This allows the parties time to discuss settlement and it may scare off people who are not sure about proceeding with the mark.

Link to the rest at Pirated Thoughts

During one of his college summers, PG and a friend who was majoring in electrical engineering traveled to Minneapolis. The friend had a sumer internship in the legal department of a large technology company and PG found a job in a soft drink bottling factory (which demonstrated the varying market value for engineering students and no-idea-for-a-major students).

During the summer, per the OP, PG’s friend told him entertaining stories about various strange patent and trademark applications he came across during his work day. PG discovered that entertaining stories from a bottling factory usually involved exploding bottles when the bottling machine went out of adjustment or a forklift dropping a pallet of root beer.

After graduation, PG’s friend went to law school and became a patent attorney. The last PG heard, his friend had founded what became the largest intellectual property law firm in a major midwestern city.

It would be a nice ending to this story if PG had started what became the largest bottling factory somewhere, but he went to law school instead in order to remove the curse from his frivolous undergraduate major.

I Want That on a T-Shirt

From Gizmodo:

Artists on Twitter say that their work is regularly stolen by armies of bots that generate t-shirts from popular designs—and they’ve got the receipts to prove it.

Here’s the scam: Bots linked to popular t-shirt sales platforms appear to be crawling Twitter for replies to artists that mention phrases like “I want that on a t-shirt” or “Can I get that on a t-shirt?” Within hours, vendors on popular t-shirt destinations (including Amazon, A&H Merch, Toucan Style, Moteefe and others, according to Medium) then start offering the original work for sale without seeking the artist’s approval, let alone cutting them in on the take. The only way to have the infringing material removed is for the artist to then contact the platforms and suffer through a slow-moving takedown process. It’s an intractable problem for independent artists who rely on social media platforms for visibility but are having their work stolen en masse.

. . . .

Painter Rob Schamberger highlighted the issue in a Dec. 1 tweet, writing “Never, ever, EVER respond to someone’s art on Twitter saying you want a shirt with that art. Bot accounts will cue into that and then pirate the artwork. This then becomes a nightmare for the artist to get the bootleg merchandise taken down.”

From there, Twitter user and artist @Hannahdouken came up with an idea: the bots doing the pirating may be able to detect when customers may be interested in purchasing a shirt, but they’re not smart enough to discern what the actual content of the shirt is.

@Hannahdouken asked Twitter users to respond to an image stating “This site sells STOLEN artwork, do NOT buy from them!” saying variations on the phrase “I want this on a shirt.” It worked…

. . . .

… after which all hell broke loose, with Twitter users escalating the prank to include terrible memes and intellectual property belonging to the infamously tight-fisted Disney Corporation, like Mickey Mouse. Multiple stores almost immediately ran shirts saying things like “Not licensed by the Walt Disney Company / This is NOT a parody! We committed copyright infringement and want to be sued by Disney. We pay ALL court and tribunal fees.”

. . . .

Another Twitter user was able to trick one of the stores into running a shirt with a picture of Mickey Mouse saying “China must be held accountable for its crimes against Uighur Muslims! Just ask me, Mickey Mouse! IP of the Disney corporation! Ha-ha!”

. . . .

“If you’re an artist and your designs get stolen its extremely frustrating, since the whole process is so automated and quick there’s few things to prevent this, and the process of getting these shops to remove your work is so frustrating and doesn’t stop them from doing it again,” @Hannahdouken told Gizmodo via Twitter DM. “The shirts they sell are extremely cheap as well, so people probably feel more inclined to buy it and less likely to check on the legitimacy of sites, instead of buying from an artists store where they actually get a cut.”

Link to the rest, including images of lots of examples, at Gizmodo

When you own an artwork, you don’t own the copyright: Danish artist wins injunction against watchmakers planning to cut up painting

From The IPKat:

On Monday, 2 December 2019, the Danish Maritime and Commercial High Court issued a ruling in a case which explores the fine line between destruction and alteration of existing artwork. The conclusion? Cutting up an existing artwork to repurpose the individual pieces as wristwatch faces constitutes reproduction of the work in an amended form – not destruction followed by the creation of a new, original work.

. . . .

In the case in question, the Danish artist Tal Rosenzweig (better known as “Tal R”) had requested a preliminary injunction against the Danish company, Kanske Denmark ApS (“Kanske”), to prevent it from cutting up the painting “Paris Chic”, created by Tal R, in order to insert the pieces into wristwatches. In addition, Tal R had also separately requested preliminary injunctions against the manufacture, sale and marketing by Kanske of such wristwatches.

In the injunction requests, Tal R claimed primarily that the intended use of his “Paris Chic” painting by the company would constitute an infringement of his copyright to the work, reasoning that it would violate his exclusive rights under section 2(1) of the Danish Copyright Act “to control the work by reproducing it and by making it available to the public, whether in the original or in an amended form […]” as well as his rights under section 3(2) of the Act, according to which “[t]he work must not be altered nor made available to the public in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality”.

Tal R further claimed that by marketing and offering for sale the wristwatches (even though none had actually been made, and the painting was therefore yet unharmed), Kanske had violated section 3(1) of the Danish Marketing Practices Act, according to which “[t]raders shall exercise good marketing practice with reference to consumers, other traders and public interests”, as well as section 22(1) of the Act, which states that “[t]raders must not use business identifiers and similar devices that do not belong to them […]”. Specifically, Tal R claimed that Kanske had made unauthorized use of the “Tal R” brand in its marketing, thereby implying that a commercial partnership existed between Tal R and the company.

. . . .

After acquiring the painting, Kanske had initially announced on its website that it would host an online auction, promising that the winner would be given first choice of which piece of the painting he or she desired for a wristwatch. According to one screen shot submitted by Tal R, the highest bid as of 11 November 2019 was DKK 41,000 (approximately EUR 5,467).

. . . .

According to screen shots submitted by Tal R, the company went on to claim, inter alia, that the purpose of the project was to “arouse emotions”, and that “there can also be strength in the grief that people will feel at losing something. There can be a catharsis in people getting angry at us for doing something that people think is forbidden.

Link to the rest at The IPKat

US Publishers and Alliance Back Congressional Letter on Copyright Restatement

From Publishing Perspectives:

An interesting discussion around copyright is developing with Tuesday’s (December 3) release by the Association of American Publishers (AAP) of a statement on a “copyright restatement project” underway at the American Law Institute (ALI). That comment from the AAP has been followed Wednesday (December 4) by a similar statement from the Copyright Alliance.

And while the core of the argument developing here lies deep in legal assessment—less accessible to many in publishing than the familiar top-level questions of copyright protection for authors and publishers—the occasion is important for just that reason: A quiet but potentially influential reappraisal of copyright law could, as one commentator has put it, “introduce greater confusion into its area of focus.”

At the publishers’ association, president and CEO Maria A. Pallante goes so far as to call the restatement project “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”

. . . .

At the Above the Law newsletter, Scott Alan Burroughs of the art law firm Doniger/Burroughs wrote in January both about what has become customary from ALI—and why a copyright restatement is out of character: “The ALI is known for its restatements of laws,” Burroughs wrote, “regarding areas of state law that differ greatly in their application from state to state, such as torts.

“In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act.”

Not only is this effort of more than three years by ALI an unusual foray for the organization, Burroughs wrote, but it appears to be a potentially dangerous gravitation toward the support of major tech media companies.

“From a preliminary review of the project’s language,” Burroush wrote, “the copyright law is being ‘restated’ in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. … If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).”

In February, Washington Legal Foundation’s Glenn G. Lammi wrote at Forbes, “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value.”

. . . .

The congressional letter first echoes the surprise of many in the community about the nature of the ALI project: “Throughout its almost 100 years of existence,” the Congress members’ letter reads, “ALI has never chosen to draft a restatement of an area of the law that is almost exclusively federal statutory law—until now. We are deeply concerned by the ALI’s current Copyright Restatement Project.”

The lawmakers note that the US Copyright Office shared its leadership’s concerns with ALI in the same January period in which Burroughs’ and other observers’ articles of alarm were appearing in the news media. Expressions of concern also were registered by the US Patent and Trademark Office and the intellectual property law section of the American Bar Association.

The congressional letter then creates a short list of questions, calling on ALI to state its intentions. Some of the points of inquiry the lawmakers demand answers to are, in essence:

  • Why now? What triggers a restatement of federal copyright law, which “has been in existence for more than twice as long” as the American Law Institute has been.”
  • How is ALI approaching the restatement process?
  • How much weight is given to existing law and legislative history?
  • Are recent copyright law changes being taken into account and respected? These include one with which Publishing Perspectives readers are familiar, the CASE Act, which creates a small claims board in the Copyright Office for inexpensive claims of copyright infringement and misrepresentation.

. . . .

In the Association of American Publishers’ statement of support for the lawmakers’ inquiry, the AAP quotes the lawmakers, who note, “Any restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”

Link to the rest at Publishing Perspectives

PG is reminded of an old Southern rural saying, “The stuck pig squeals.”

The American Law Institute (“ALI”) is a fusty old institution that belches forth a “restatement of the law” on some legal topic every few years. It has always reminded PG of a high-brow legal Cliff’s Notes which provides a summary of various cases and statutes to make them easier to understand for those who don’t want to actually do the work of researching statutes and case opinions to find out what the law actually is.

PG never tried to cite anything from an ALI Restatement back when he was doing a lot of litigation because he knew most of the judges before whom he appeared would have responded by asking him if he had any actual legal authority in the form of a statutory reference or an opinion of an actual court on the topic and making some sort of sarcastic comment about PG wasting their time.

Back to the stuck pig, the Association of American Publishers is a mouthpiece for all the major publishers in the US together with the owners of those publishers which are mostly located across an ocean. PG generally assumes that if the AAP opposes something, PG will probably support it on behalf of his author clients and Mrs. PG, who never seems to stop writing books.

PG will assure one and all that the depth of knowledge about copyright law held by virtually any United States Senator or Congressional representative can be measured in fractions of an inch. The Washington lobbyists are howling and the large publishers that employ them are promising campaign contributions and lunch with whoever the latest fashionable best-selling author is at the moment to those same elected copyright naifs who are jumping all over the ALI.

From the perspective of the ALI, all this criticism will likely increase sales of their Copyright Restatement when it is finally released. PG doesn’t think anyone he knows will actually buy a copy, but he may traipse to a local law school library to take a look.

The Boris Johnson Plagiarism Scandal

From Plagiarism Today:

The United Kingdom is in the midst of what might be its most important election in a century. With the drama over Brexit swirling, the country is at a crossroads and it’s very likely that the next election will shape the future of the country for decades to come.

However, that election took a back seat on Friday following a terror attack on London Bridge that killed two people and injured three. That attack has now become a talking point of the election itself, with all sides striving to assure voters.

One of the more notable responses was from Prime Minister Boris Johnson, who is also head of the Conservative Party. In a 16-tweet thread, outlined why the alleged attacker was released, putting the blame on the Labour Party, his biggest political opponents.

. . . .

However, shortly after it was published, a pseudonymous blogger, The Secret Barrister, put out his own tweet calling the thread a plagiarism of his blog post, which had been published just hours earlier.

PG Note: Asterisks replace an interesting epithet PG hadn’t heard in this particular form before.

According to The Secret Barrister, Johnson cited the same sources he did, made similar observations and then “stripped out the inconvenient context and adopted a false conclusion.”

He also added:

“I find it fascinating that, having never previously shown any interest in explaining complex areas of law to the public, within hours of my posting of a full explanation of the legal issues involved in this case, the Prime Minister’s Twitter account embarked upon a 16-tweet legal thread…”

This, as with any case of political plagiarism, has led to a sharp divide. In the responses to the thread, many have used The Secret Barrister’s words against Johnson. Others, however, have defended him against the claim.

. . . .

It’s important to fully understand the allegations against Johnson. Even though many have called this a “copy and paste” plagiarism, including The Secret Barrister himself, it is not actually that.

The words between the two are completely different. In fact, there are a lot of differences between the two works, in particular with the conclusions. They are similar works, but they are not identical or even nearly identical.

Instead, the allegations center around a combination of the points that Johnson raises, the order that they are raised in and the source he cites. In particular, The Secret Barrister found it odd that both he and Johnson referenced the same document by the Prison Reform Trust charity.

To that end, it’s easy to see why The Secret Barrister and those that support him see the similarities. The tweet thread and his post are indeed very similar, hitting very similar points and differing only with the conclusions. Though no words are copied, one might say the structure of the posts are very similar.

But does this prove plagiarism? This is where things get thorny.

For The Secret Barrister, the case is open and shut, “The possibility that the PM’s own legal advisers drafted his thread without any regard to my witterings has to be carefully considered. But I just can’t see it.”

He goes on to add:

“The number of people who have (apparently independently) noticed the similarities in substance, even if the language has been changed, leads me to believe I’m not going mad. The most obvious explanation is that Johnson (or likely his special advisers) have taken their info from the blog, stripped out the inconvenient context and used it to present Johnson as a legal sage sharing his wisdom. Or, as I’m told academics would term it, plagiarism.”

But is it that straightforward? For me personally, while I agree that there is a reason to be suspicious and wary, it’s hardly an open and shut case. It may well be plagiarism, but there are some pieces to the puzzle missing as it stands right now.

. . . .

To prove that something is plagiarized, one usually has to answer three questions:

  1. Was the work correctly cited? If it’s correctly cited, it’s not plagiarism.
  2. Can the similarities be explained by common sourcing, including tropes, cliches, etc? If so, it’s not plagiarism, at least not a plagiarism of the work in question.
  3. Can the similarities be explained by coincidence? Coincidences happen. Look at the case of Dennis the Menace. Coincidences aren’t plagiarisms. [PG Note: See below]

The first two aren’t helpful here as there is no citation in either work and there’s no indication that The Secret Barrister pulled his format from another source or from a template of some kind. That leaves only the third issue.

But this is where things fall apart a bit. Coincidence is often very difficult to disprove satisfactorily. With verbatim plagiarism, this is relatively easy. We can show that certain strings are unique to the two works and that the odds of them being created independently are astronomical.

. . . .

The truth is that we don’t know and not only is there not enough evidence to say conclusively this is plagiarism but there likely never will be. Barring a confession by Johnson or additional information about who wrote the tweets and how, we are unlikely to have enough information to be 100% sure one way or another.

But, even if we did, the damage would be somewhat limited. While copying someone’s outline and one of their sources is certainly plagiarism, it’s also not as severe as verbatim copying or more direct paraphrasing.

The Secret Barrister’s original post has over 3,700 words and Johnson’s tweets barely break 700 (though they include images of documents). It’s not verbatim plagiarism and it’s not a paraphrase, it’s a different beast altogether. They are similar documents in structure and source only.

Link to the rest at Plagiarism Today

Here is a bit more about the Dennis the Menace case mentioned above, also from Plagiarism Today:

1951 must have been a very bad year to be named Dennis.

The reason is because on March 12 of that year two separate comics entitled Dennis the Menace went on sale, one in the UK, one in the U.S (Note: The UK version is dated March 15 but actually went on sale on March 12).

The UK comic Dennis, which first appeared in Beano #452, was created by David Law and published by D.C. Thomson as a comic strip inside a popular comedy comic book. It’s U.S. counterpart was created by Hank Ketcham and initially distributed by Post-Hall Syndicate as a syndicated comic strip for newspapers.

Though, based on this simple fact, many draw the conclusion that one of the two creators had to have plagiarized the other, it’s become clear that simply wasn’t the case. Not only did the two creators have no way of knowing what the other was working on, but the two characters are actually extremely different. The UK version is a true menace, a mean-spirited boy who likes to cause trouble, and the U.S. version is happy-go-lucky child that causes trouble without intending to.

The two creators largely agreed to allow each other to work on their respective comics and both are continuing in at least some form today (though the UK version is now known as Dennis and Gnasher, named after Dennis’ dog). Though the U.S. version may be the most popular internationally, the UK version is better known in its native country. No legal action has been taken against either creator.

Still, the coincidence is one of the best-known in the publishing world and was recently highlighted on Cracked. However, it also highlights one of the most difficult aspects of plagiarism detection, trying to separate what is a plagiarism and what is a coincidence. Sometimes, it can be nearly impossible to be certain.

Link to the rest at Plagiarism Today

PG notes that, under US law, plagiarism is not illegal unless it rises to the level of copyright infringement.

From PlagiarismChecker.com:

Plagiarism is using someone else’s work without giving proper credit – a failure to cite adequately.

Copyright infringement is using someone else’s creative work, which can include a song, a video, a movie clip, a piece of visual art, a photograph, and other creative works, without authorization or compensation, if compensation is appropriate.

Schools enforce plagiarism.
The courts enforce copyright infringement.

. . . .

Plagiarism

Plagiarism is using someone else’s work without giving proper credit. Schools deal with plagiarism by giving the cheaters academic consequences. Most teachers will give F grades for plagiarized work, and some will do more. When I was a teaching assistant at Stanford University, some students were suspended for copying answers during a test.

Plagiarism doesn’t have to include copyright infringement. For example, William Shakespeare’s plays are not copyrighted because they’re too old. Even though it would technically be legal to copy from one of those plays for an English assignment, it would still be plagiarism if you didn’t give credit to Shakespeare. Your teacher may not be able to take you to court over it, but she can certainly give you an F. You might even get suspended or expelled from school. Even though copying one sentence from a Web site is legal according to United States copyright laws, that may still count as plagiarism in your teacher’s book.

Copyright Infringement

Copyright infringement is using someone else’s work without getting that person’s permission. The author of any original work, including books, essays, Web pages, songs, pictures, and videos, automatically gets the copyright to that work, even if she doesn’t label it with the copyright symbol and her name. The work must be fixed in tangible form, which means it must be stored on something physical, such as paper, canvas, a CD, or a hard disk. This makes college students copyright owners, since they’ve already written many original works for school.

The owner of a copyright gets to decide who can legally make copies of that work. It is illegal to copy large sections of someone else’s copyrighted work without permission, even if you give the original author credit. Imagine someone making copies of the movie Finding Nemo without asking for permission. He sure won’t get away with it just by giving the authors credit on the DVD cover!

Fortunately, a fair use exemption allows you to legally copy small amounts of someone else’s work. Just make sure to give the author credit so you won’t be guilty of plagiarism!

The courts assign consequences for copyright infringement. This means someone may come after you with a lawyer if you violate his copyright. Your school can report copyright infringement to people who have the legal power to take you to court. Students have been sued for copyright infringement before. In some cases, the court may require you to pay the fees for both your lawyer and the copyright owner’s lawyer.

Link to the rest at PlagiarismChecker.com

Earlier this year, PG created a long post about Fair Use, Derivative Works, Transformative Fair Use which is not a Derivative Work and Infringing Derivative Works. He thought it was interesting, but you may not.