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Dec. 26 1997 3:30 AM


How to know it when you see it.

An indignant Barbara Chase-Riboud filed a $10 million copyright-infringement suit against Steven Spielberg and the makers of Amistad in October, claiming that the movie contained characters and scenes unique to her historical novel about the slave rebellion. In 1991, she brought a similar suit against a playwright and won. Last week, the New York Times accused Chase-Riboud herself of pinching several paragraphs from a nonfiction work for her 1986 book, Valide: A Novel of the Harem. Chase-Riboud acknowledged her debt to the previously published work, but claimed that she had done nothing wrong because the book was a "reference" and her novel was intended to be a "seamless narrative using both documents and fiction."


When Did Borrowing Become Theft?

Prior to the 18th century, writers borrowed freely from each other without shame or punishment. (The Latin word plagaria referred only to the act of physical kidnapping.) Shakespeare borrowed passages from Plutarch and contemporaries. Books were copied by hand prior to the rise of the printing press, and amanuenses were given liberty to rework texts. England passed the first copyright laws in 1709, as mechanical reproduction of works and new ideas about individuality became widespread. These laws provided legal remedies for authors--writers and composers mainly--who believed their works had been unfairly lifted. The U.S. Constitution required Congress to pass similar copyright laws.

Copyright laws prohibit plagiarism. The courts have ruled that a work cannot be legally copied if it is 1) an original, creative product--not merely a fact or something found in nature, like the sound of the wind, or 2) written or recorded--not just an idea. Fifty years after authors die, their works enter the "public domain" and are no longer protected by law.

Plagiarized? Prove It!

Proving plagiarism in the United States requires the plaintiff to show that 1) the defendant had access to the earlier work and 2) the defendant's work bears a "substantial similarity" to the plaintiff's original. It sounds like a legal blur because it is. Different courts have different opinions on what constitutes "substantial similarity." For example, jazz drummer Bernard "Pretty" Purdie filed a copyright-infringement suit against a rapper who lifted a lone cymbal crash from one of Purdie's recordings. He claims that his cymbal crash--a single beat--is so recognizably his that any use of it violates his copyright.

When Is Borrowing Just Borrowing?

Parody--as long as it is immediately recognizable as parody--is largely exempt from charges of copyright infringement. Also, the doctrine of "fair use" allows writers to quote limited sections of a work, as long as it is germane, properly attributed, and doesn't undercut sales of the original. The courts ruled that The Nation exceeded its fair-use rights in 1985 when it excerpted key sections of Gerald Ford's memoir in an article that was published slightly before Ford's book reached stores. The courts can be as fuzzy about what constitutes fair use as they are about what constitutes substantial similarity.

I Think I've Been Plagiarized and I Wanna Sue. What Are My Chances of Winning?

Slim. In practice, the courts find infringement only in instances where language, images, or music were lifted wholesale. They rarely consider cases in which a character was copied or a plot was stolen. Thousands of writers bring suit each year claiming their copyright has been violated, but almost none win satisfaction in court. However, the courts strictly police the unlicensed "sampling" of music (the insertion of a passage into another artist's musical collage). Book and software pirates are prosecuted under the copyright laws, but pirates are not really plagiarists.

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