Young Writers Society

This for my new novel, Stolen.

The plot deals with a struggling single mother who is also a writer dreaming to become published. When, she finally gets a short story published in her favorite magazine, it is plagiarized and turned into a novel, and it becomes one of the most popular novels in the world. When she finally works up the guts to speak out, she and the plagiarist will go to trial. I'm planning on the plagiarist to be convicted, but, I don't really know, in the real world, what can happen if you are caught to be plagiarized? Is it really worth jail time, or just a fine? Help please.

-Elinor

Elinor Brynn wrote:The plot deals with a struggling single mother who is also a writer dreaming to become published. When, she finally gets a short story published in her favorite magazine, it is plagiarized and turned into a novel, and it becomes one of the most popular novels in the world. When she finally works up the guts to speak out, she and the plagiarist will go to trial. I'm planning on the plagiarist to be convicted, but, I don't really know, in the real world, what can happen if you are caught to be plagiarized? Is it really worth jail time, or just a fine? Help please.

I'm a law student studying intellectual property. This is a complicated scenario, so brace yourself for Intellectual Property 101.

First, some quick definitions:

Plagiarism is an ethical issue that arises when one person steals somebody else's work and takes credit for it. This includes stealing other people's ideas, but beware - it's standard practice for writers to be inspired by other people's work. The parallels would have to be pretty obvious for plagiarism to be shown.

Copyright infringement is a legal issue that arises when one person infringes the creator's copyright - a bundle of legal rights automatically created when you first put your work into fixed form, ie. when you first write it down. You have the exclusive right to, among other things, publish or modify the work.

What does this mean for your protagonist?

Firstly, she has the legal right of copyright in the work. That means that she and only she is allowed to publish it - she can sell or give away that right, but nobody can publish without her consent. Anyone who does is infringing copyright.

Secondly, she has the moral right to assert her authorship, ie. to tell everyone that the work is hers. Nobody can claim that the work is theirs. Anyone who does is plagiarising.

Here's the complicated part. Her short story is "plagiarized and turned into a novel".

This post is getting long and unwieldy, so I'll break here and deal with the "turned into a novel" issue in a second post.

Back to the short story being "turned into a novel".

What do you actually mean by this?

* If the entire short story is incorporated verbatim, that's clear copyright infringement.
* If part of the short story is incorporated verbatim, that's probably copyright infringement depending on the proportion of the original work being used.
* If there's heavy borrowing with characters, settings and scenes being reworded, that's probably plagiarism.
* If key ideas from the short story are taken, that's probably not plagiarism. Remember that not all cases where ideas are borrowed are plagiarism. For example, The Lord of the Rings, Harry Potter and Star Wars all share the same basic story - the Hero's Journey. That's not plagiarism.

If there's an obvious case for copyright infringement, that's illegal, and your single mother needs to take the author to court. Some lawyers do pro bono (free) work in the arts, or if you want to up the stakes, you could have your protagonist take out a loan to pay a lawyer that she intends to pay off with the settlement from the case - so if the case fails, she can't pay the lawyers' fees.

So she takes the author to court. Given that the author has published "one of the most popular novels in the world", which I assume has made him a millionaire, our single mother should ask for an "account of profits" - that is, she wants all the money he earned from plagiarising her work. (The author will probably have a clause in his contract stating which out of him and the publisher are liable in any lawsuits. Doesn't matter - he'll still be finished as an author.)

If she's successful, she walks away from the court an overnight millionaire. If she fails, she'll still have to pay the legal fees. Ouch.

If there's an obvious case of plagiarism, the bad news is that plagiarism itself is not illegal - so no court case. The single mother needs to go for public humiliation. Write to his publisher. Write to his agent. Write to the committees of all the awards he's won. Write to the newspapers. Tell the world that he's a thief and a plagiarist. Really make him suffer. Pretty soon they'll be throwing money at her to make her go away.

Phew! I think that's all. My degree is in UK intellectual property, so if the single mother is in the US, the situation might be slightly different. Basic copyright law is the same, and your work is still automatically copyrighted when you write it, but I've heard that you can't get damages in copyright infringement cases unless your work was registered with the US Copyright Office. So beware!

Any questions?

While I'm on the topic, some background information. Rich, popular authors are continually being accused of plagiarism and sued for copyright infringement by crazy people, so I would expect a certain cynicism about your protagonist's allegations, at least at first. You might be interested in reading about:

JK Rowling v Crazy Woman

Stephenie Meyer v Other Crazy Woman

Thanks a ton Karsten. What I mean about being transfered into the novel, It's the exact same characters/names, exact same plot, it contains a heavy amount of excerpts from the original story, the only thing original being the additional content to make it a novel.

I read those links you gave me, and at it was interesting, but I'm going to try to incorporate that fact into the original novel. No one believes her at first, especially since the magazine is unpopular and out of print (the case of plagiarism happens five years after she publishes the story), and those are some of the roadblocks she has to overcome.

I'm going to dive into a lot of additional research to see if my idea for a plot line is in the bounds of possibility. In the meantime, I'll try to catch you in chat so I can talk to you a bit more.

Thanks,
Elinor

Glad I could help, Elinor. I'd be happy to discuss this in chat if we catch each other.

Elinor Brynn wrote:What I mean about being transfered into the novel, It's the exact same characters/names, exact same plot, it contains a heavy amount of excerpts from the original story, the only thing original being the additional content to make it a novel.

Yeah, that sounds like an open-and-shut case of (a) copyright infringement and (b) plagiarism.

No one believes her at first, especially since the magazine is unpopular and out of print (the case of plagiarism happens five years after she publishes the story), and those are some of the roadblocks she has to overcome.

The bad guy's lawyer will tell him that independent creation is a defence to copyright infringement. That is, if two writers separately write and publish the same story without knowing of each other, there is no copyright infringement. The bad guy might want to argue that he never saw this one story in this obscure magazine that went out of print years ago. However, if the similarities are as glaring as they sound, the judge isn't going to believe his story. (Also, I'd think a magazine would have a subscribers' list, so it's easy enough to prove that he read the story.)

And one final note - in your original post you mentioned that you want the bad guy to be "convicted". Copyright infringement is a civil, not criminal, matter. No conviction, no jail time. Just fines, injunctions (court orders, like to stop publishing this copyright-infringing work) and plenty of delicious public humiliation.

I'm enjoying using my hard-earned expertise!