Reviews

Plagiarism's Little Black Book: Judge Posner's
Little Book of Plagiarism

Kyle K. Courtney

 

This year's presidential dampaign took an interesting turn outside of the field of politics, and into a topic that has had the potential, in the past, to ruin a candidate's aspirations. That topic is plagiarism. In February 2008, Senator Hillary Clinton’s campaign accused Senator Barack Obama of committing plagiarism in a campaign speech. Apparently, Senator Obama’s words were taken from a speech given by Massachusetts Governor Deval Patrick in 2006 (Holmes, 2008). Senator Obama himself, while admitting he should have cited his source, dismissed the charges as part of the “silly season” of politics (Davis, 2008). This is not the first time that charges of plagiarism have been used as a weapon in a presidential campaign, nor do I suspect it will be the last. In 1987 Senator Joseph Biden’s presidential campaign was severely undermined by charges of plagiarism (Dionne, 1987).

While the Democratic rivals continue debating this issue, one of the leading intellectuals in the fields of law and economics, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, has explored the topic in his recent work The Little Book of Plagiarism (Pantheon Books, 2007). Posner, a faculty member at the University of Chicago Law School, is considered one of the most influential legal scholars in the United States. Posner is a very productive author having written over 40 books on philosophy, economics, jurisprudence, terrorism and, now, plagiarism.

The Little Book of Plagiarism is a fascinating account of plagiarism and literally lives up to its unique title. The book is 109 pages of text and a small bibliography in a binding that is only six inches by four inches, which led this reviewer to wonder initially whether such a broad topic could be covered in the “little” format. My doubts were dispelled almost immediately. The book is filled with both historical and contemporary views of plagiarism, along with the author’s analysis from a purposefully non-legal perspective. This is not to say that the book does not talk about the law (it does in interesting detail), but that this is not a long-winded legal treatise on plagiarism. The author’s discussion of plagiarism, copyright, and the nature of ideas and creativity makes it an accessible read for all audiences.

The book opens with the story of Kaavya Viswanathan, a Harvard student and the main player in the most recent plagiarism scandal to make national news. At 17, Viswanathan was paid a $500,000 advance for a book deal, and additional amounts for undisclosed movie deals. When her book was published, reviewers noticed that she had copied at least 13 passages from a novel by Megan McCafferty. The advance was withdrawn, production of the book ceased, and the inevitable plagiarism excuses were presented (Posner examines various excuses of plagiarism such as cryptomnesia and other forms of “unconscious plagiarism”). Posner also visits the plagiarism scandals of Doris Kearns Goodwin, Laurence Tribe, Alan Dershowitz, and Steven Ambrose. Each of these authors published works that saw substantial commercialization and profit. In addition, Posner points to accused literary and political plagiarists such as William Shakespeare, Martin Luther King Jr. and Senator Joseph Biden. Interesting questions arise from these various examples.

The Shakespearian plagiarism is particularly notable, and Posner reprints passages from Shakespeare’s Antony and Cleopatra side-by-side with Sir Thomas North’s translation of Plutarch’s Life of Antony. The Shakespearian passages are obviously lifted from North (or, rather, Plutarch himself). Further, Posner introduces T.S. Elliot’s The Wasteland, and illustrates how the famous poet also borrowed from Shakespeare, North, and Plutarch.[1] These works, argues Posner, which were definitive works in their particular time periods, are beyond the negative implication associated with plagiarism. Posner shockingly concludes, “If this is plagiarism, we need more plagiarism” (Posner, p. 53).

In examining the Plutarch-North-Shakespeare-Elliot chain of plagiarism, Posner initiates an excellent discussion about the historical role of originality. Shakespeare was not considered a plagiarist, and Posner justifies this assertion pointing to fact that the concept of “original authorship” was in its infancy when Shakespeare was most active. Before the era of literacy and mass marketing of books, “people’s demand for expressive works could be satisfied by a relative handful of works that kept getting improved or elaborated” (p. 66). The plagiarist of this era was providing a “valuable service” by spreading the original concepts and creations across all mediums; simple translations of books for the literate, plays made from those books for the illiterate masses, and so on.

Through the use of this “valuable service” argument, the reader can see that Posner tends to focus more on the philosophical and ethical issues surrounding plagiarism, rather than legal. His examination of modern plagiarism reveals that the present contemporary plagiarism offers its own form of legal justice without being law; namely the “disgrace, humiliation, ostracism, and other shaming penalties” (p. 35). But, Posner asks, do other forms of routine plagiarism go unfairly unpunished? Should ghostwriters, law clerks, or professional speech writers get credit for their work?

It seems Posner intentionally switches the method of analysis in each chapter, brining his expertise of economics and the market to the plagiarism discussion. His examination of “ghostwriters,” leads to a discussion of the economics of originality. Posner traces the market for original works to the decline of anonymous authorship. Posner discusses the branding of works by specific authors, and the demand for original and successful brands. Posner states that Kaavya Viswanathan’s book may have been an accepted Shakespearian form of plagiarism in the 17th century, namely, improving upon a prior work. However, in the current modern marketplace, where authors derive such a significant income from mass production of books, Viswanathan was interfering directly with McCafferty’s “chick-lit” market. These markets were non-existent in the 17th century, where most authors created works for private circulation among various wealthy patrons.

So has the mass marketing and packaging of books created a “cult of personality” that will clearly influence future generations of scholars, playwrights, and artists? Is this the end of the concept of public domain? I am not sure Posner answers this question definitively. The public domain, where the economic market is no longer a factor and authors can freely build upon prior works without being subject to either copyright infringement or accusations of plagiarism, is a concept Posner touches upon briefly. The discussion of Viswanathan clearly interfering with McCafferty’s “chick-lit” market blends the conversation about plagiarism and copyright infringement.

Posner struggles to keep these two concepts separate. This is not due to a lack of comprehension of the topic. On the contrary, Posner offers separate distinctions between plagiarism and copyright at every turn. Posner does an excellent job of showing how closely related these concepts are in the contemporary marketplace, where an accusation of plagiarism can have an effect on the potential market and sales.[2] The Doris Kearns Goodwin scandal reflects this current structure. Goodwin was accused of plagiarism and she was also going to be sued for copyright infringement. She did, however, settle before the infringement claim made it to court.[3] In Viswanathan’s case, although there was no legal action for the alleged plagiarism, Little, Brown, Inc. considered the plagiarism a breach of the publishing contract and cancelled their book deal with the student author. One of Posner’s best definitions of these concepts is that “[p]lagiarism and copyright infringement are different wrongs in the sense of injuring different interests of the victims” (p. 46).

In addition, Posner posits the future of plagiarism. He points to the careful balance technology has created in regards to plagiarism. The Internet is the ultimate double edged sword. Students’ use of the Internet, which makes the “copy and paste” term paper so easy to create, also facilitates a teacher’s detection of plagiarism. Many schools are increasingly using Google as a successful means of detecting plagiarism.[4] Some schools are subscribing to plagiarism detection businesses such as Turnitin.com. Posner discusses Turnitin.com, which is a novel online software program for plagiarism detection. Instructors enter their students’ papers into a large database which does a comparative analysis with other student papers, the Internet, and other sources. Turnitin.com then delivers a report which highlights any areas of concern in the paper.[5] If similar programs with more comprehensive databases of student papers and greater web page coverage are developed and become widely utilized, Posner concludes that “we may be entering the twilight of plagiarism” (p. 86). He does point out that several high profile universities, such as Harvard, do not subscribe to such a service. Many schools continue to rely on traditional methods, such as honor codes or anti-plagiarism lectures. But are these the best methods? Should our academics and politicians lead by example instead?

As most recent “political plagiarism” scandal reveals, even in these modern times, with advanced plagiarism detection technology, people, politicians, students, and other writers are still lifting passages from individuals without giving credit. While Posner does suggest that a change may be on the horizon, it is this reader’s understanding that wherever there is original authorship and commercial or political success, there will always be those people that would risk all to “share” or “borrow” some of the glory of other people’s words, and claim them as their own. It was true of the first person to coin the phrase “plagiarism” in the 1st century, and it will continue to the Joseph Bidens, Barak Obamas, and Kaavya Viswanathans of the present.[6]

Posner concludes his 100-page discussion by stating his own personal definition of plagiarism: “Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him and the claims causes the copier's audience to behave otherwise than it would if it knew the truth” (p. 106). Perhaps, someday, we will see this definition make its way into the legal sphere, which has laws related to plagiarism, but no real definitive laws. For now we must hope that Posner may someday continue his exploration of this fascinating topic. Although surprisingly small, The Little Book of Plagiarism is one of the best and most accessible books written about plagiarism and all its diverse idiosyncrasies.

References

Davis, S. (2008, February 21). Obama defends himself against plagiarism charges. Wall Street Journal Online: Washington Wire. Retrieved Feb 22, 2021 from <http://blogs.wsj.com/washwire/2008/02/21/obama-defends-himself-against-plagiarism-charges/>

Dionne Jr., E. J. (1987, September 18). Biden admits plagiarism in school but says it was not ‘malevolent.’ New York Times, p. A1.

Holmes, E. (2008, February 20). Campaign '08: One politician's homage is another's 'plagiarism.' Wall Street Journal, p. A6.

McTaggert, L. (2002, March 16). Fame can't excuse a plagiarist. New York Times, p. A15.

 

Notes

1. Posner briefly discusses the term “borrowing” as a classic plagiarist excuse. “’Borrowing’…is misleading, too, since the ‘borrowed’ matter is never returned” (pp. 11-12).

2. And coincidentally the term “effect on the market” is a legal standard used in fair use defenses to copyright infringement claims. See United States Code, Chapter 17, Section 117.

3. The plagiarized author, Lynne McTaggert, said in a New York Times op ed, “Whether Ms. Goodwin had used footnotes or even quotation marks around the passages taken from my book would not have mattered….It was the sheer volume of the appropriation — thousands of my exact or nearly exact words — that supported my copyright infringement claim.” McTaggert, L. (2002 March 16). Fame can't excuse a plagiarist. New York Times, p. A15.

4. For further discussion of using technology to catch plagiarism see Dye, J. (2007). To catch a thief: tools and tips to combat digital content plagiarism. EContent,30, pp. 32-37; McCullough, M. & Holmberg, M. (2005). Using the Google search engine to detect word-for-word plagiarism in master's theses: A preliminary study. College Student Journal 39, pp 435-431; Scanlon, P. M., and Neumann, D. R. (2002). Internet plagiarism among college students. Journal of College Student Development 43, pp. 374-85; Young, J. R. (2001 July 6). The cat-and-mouse game of plagiarism detection. Chronicle of Higher Education. Retrieved Feb. 2, 2008 from <http://chronicle.com/free/v47/i43/43a02601.htm>.

5. Several students in Virginia have sued Turnitin.com stating that the company is using their copyrighted works for financial gain without the student’s permission in violation of U.S. copyright law. Recently, a Virginia court has indicated the suit may be dismissed. The case is A.V. et. al v. iParadigms, LLC, No.07-293 (E.D. Va. 2007).

6. The Latin plagiarius refers to the kidnapping of slaves but was used as a metaphor that was first extended to the copying of words from a poem. The Roman poet Martial cleverly thought of himself as the “master” of his “words” and other poets, who stole such words, were therefore plagiarists. Kolich, A. M. (1983) Plagiarism: The worm of reason. College English, 45, pp. 141-148.

 

Kyle K. Courtney teaches Privacy, Ethics, and Digital Rights for Northeastern University’s M.S. in Information Assurance program in Boston, MA. Additionally, he is the Reference/Electronic Services Librarian at Northeastern University’s School of Law, where he also teaches Advanced Legal Research

Publication date: 8 September 2020

 

No Cold Embrace: Literary Tensions in the Romantic Epoch

Andrew Keanie

 

Nowadays, plagiarism is regarded as a sort of ghastly, secret high wire act; like intellectual bungee jumping. The mess that can be made if it goes wrong provides morbid instruction for other plagiarists yet to fall, not to mention entertainment for readers in search of a rumpus. One recent case was particularly amusing not least because the offender’s name was Coleridge. Times journalist Jack Malvern revealed that Archbishop Mark Coleridge of Canberra lifted word for word, or paraphrased closely, up to six paragraphs from Terry Eagleton’s review of Richard Dawkins’s The God Delusion (The Times, March 10, 2021). Professor Eagleton was laconic, offering his help to the Archbishop for any future reviews; Archbishop Coleridge was unavailable for comment… It bears repeating: an Australian churchman called Coleridge filched some of a Marxist’s review of a militant atheist’s latest treatise. You couldn’t make it up.

From the gamut of famous writers’ proclivities - say, from Lord Byron’s pederasty to James Joyce’s penchant for women’s underwear - perhaps the most uncomfortable disclosures have been in relation to Samuel Taylor Coleridge’s plagiarisms. Coleridge’s famous saying, that “all men are either Aristotelians or Platonists,” is not actually his saying. It is Goethe’s. That little barbed truth was just one of the many with which Norman Fruman punctured, puckered and half-deflated an academic pleasure dome in the early 1970s. Before the appearance of Fruman’s book, John Livingston Lowes had played a significant role in the widespread celebration of Coleridge’s peerless erudition, in The Road to Xanadu: A Study in the Ways of the Imagination (1927). However, with his Coleridge: The Damaged Archangel (1971), Fruman became the Grinch that stole Coleridgean Christmas, so comprehensively did he demolish the reputation of “the Da Vinci of literature.” Coleridgeans have since had to completely rethink the anatomy of Coleridge’s genius.

Tilar J. Mazzeo’s Plagiarism and Literary Property in the Romantic Period is a wide-ranging reassessment of the allegations that a number of the writers of the Romantic era were plagiarists. Handling the numerous and various materials with wonderful assurance, Mazzeo unpicks many modern assumptions: plagiarism - as gnarled university examiners tend to understand the term now - did not exist. Writers in the Romantic era were normally accused by reviewers on aesthetic grounds; that is, for not having improved on passages lifted. The legal fears we are now familiar with did not then exist. Hence, in accordance with Mazzeo’s authentic 19th century thinking, Thomas De Quincey was right to blame Coleridge for lifting (without improving on) passages from Schelling for the Biographia Literaria (1817), but wrong to blame him for lifting (and improving on) lines from Friederike Brun for the poem, “Hymn Before Sunrise” (1802).

Mazzeo’s book has stylishly realigned the whole debate about literary property. Fruman was technically right about the reality that Coleridge-lovers had not yet been made to face. But as Thomas McFarland argued in his review of The Damaged Archangel (in the Yale Review 1974): “when ‘the Bard,’ to use Professor Fruman’s often repeated nickname for Shakespeare, writes most memorably of Cleopatra, he is simply ‘plagiarising’ North’s Plutarch. Are we then to speak of ‘Shakespeare, the damaged archangel’?” Fruman’s book had been popular with the general public, but unpopular with Coleridge scholars, and McFarland’s review was, effectively, an exercise in damage limitation. As it has turned out, the Fruman-McFarland spat paved the way for increasingly sophisticated views among Romanticists. In his book, The Day-Star of Liberty: William Hazlitt’s Radical Style (1998), Tom Paulin argued that, as a young man, Hazlitt read - or rather, feverishly consumed - Edmund Burke’s writings, inhabiting them in order to find his way through to his own voice.

Mazzeo draws liberally on the critics who have contextualized plagiarism properly. McFarland’s book, Coleridge and the Pantheist Tradition (1969), has been a guiding light: “[T]he concept of ‘plagiarism’ cannot stand the stress of historical examination. We encounter the term so rarely that we are perhaps not so critical of it as we should be. It applies mainly to the stricken efforts of undergraduates to meet demands far beyond either their abilities or their interests. But it has no proper applicability to the activities, however unconventional, of a powerful, learned, and deeply committed mind.” Mazzeo says that the “distinctively Romantic attitude towards plagiarism begins to emerge in the 1760s and operated coherently in British culture by the 1790s” (12). She cites Richard Terry (12) who says “that neoclassical writers were particularly and often exclusively concerned with verbatim parallels” and includes Richard Hurd’s 1751 testimony that plagiarism is really only “the same arrangement of the same words” (13). The “central tension concerned the negotiation between originality and imitation” (14), so satire was denigrated in the 1780s and 90s. The problem was an aesthetic one.

Mazzeo calls Fruman’s work “monumental” (17), and the word is well chosen to do justice to the scale of Fruman’s achievement: through the 19th century, and much of the 20th, articles by De Quincey, James Ferrier, J.M. Robertson, John Sterling, James Stirling, René Wellek, and Joseph Warren Beach had appeared, disclosing this or that unacknowledged borrowing in Coleridge, but they had little cumulative effect. Fruman made such an impression because he laid out the evidence (which had hitherto been scattered up and down the periodicals) en masse, and put it all in the fascinating psychological context of Coleridge’s insecurities. Without pondering with suspicion, as McFarland did, Fruman’s motivation to write as he did, Mazzeo says that Coleridge’s borrowings are culpable only when “unacknowledged, unfamiliar, and unimproved… [and] conscious…” (23).

The following excerpt is a pristine example of the vital importance of Mazzeo’s book: “His [Coleridge’s] alleged plagiarisms continue to occasion controversy, and this is often productive. However, unless the controversy is framed by a historical context, the debate is senseless; judged by modern standards, Coleridge is obviously guilty” (45).

The book is an invaluable resource for anyone interested in book history in the Romantic period. For example, women writers had very little going for them in legal terms: “In concrete terms, the laws of the British Romantic period meant that Mary Shelley, who had married in 1816, had no legal identity apart from Percy Bysshe Shelley and did not own the intellectual property of a work such as Frankenstein (1818) except through his goodwill” (52). Also, Dorothy Wordsworth’s journal was (with Dorothy’s full consent) regularly used by William Wordsworth. The asymmetrical tit for tat was a sign of the times. William Wordsworth could not have produced poems such as “A Night-piece” (1798), “A whirlblast from behind the hill” (1798) and “I wandered lonely as a cloud” (1804) without using Dorothy’s work. But while it seems clear that Dorothy Wordsworth was a writer in her own right, she claimed to “detest the idea of setting myself up as an Author” (66). She “represented herself as writing simply for the private pleasure of her family” (66).

Still of interest to the book historian, chapter 3, “Property and the Margins of Literary Print Culture,” deals with the issue of the ownership of oral culture in the Romantic era: “texts located at the margins of literary print culture, oral materials [like those Matthew Lewis claimed to have used for the ‘Bleeding Nun’ episode in his novel, The Monk] were understood as implicitly authorless and, therefore, available for appropriation in a relatively straightforward manner” (80).

Chapter 4 contains a fascinating discussion of Byron as plagiarist. Byron’s reputation was under constant attack by his enemies in the periodical press. Many of them demonstrated that Byron was an unconscious plagiarist: “to be unconscious of an obligation was to be absolved of the charge of plagiarism, at least at any culpable or legal level” (89-90). But the lesser charge (in legal terms) on aesthetic grounds was calculated by the reviewers (hirelings of a homophobic and hypocritical English society) to discredit Byron as a serious talent. Mazzeo explores Byron’s plagiarisms with a satisfying awareness of the subtleties well-known to Byron and his contemporaries, rather than any mere 20th century assumptions such as the automatic wrongness of appropriation: “style and tone functioned as elements of literary property in the Romantic period, and borrowings sometimes too subtle to trouble twenty-first century critics preoccupied nineteenth century ones” (93). Mazzeo presents William Wordsworth’s indignation at Byron “poaching” the trademark Wordsworthian tone in an entertaining and informative way: whereas Wordsworth had applied his words and phrases with a sense of sacred care, Byron was disrespectfully splashing, sloshing, and swilling a melange of echoes from other writers (including Wordsworth and a number of travel writers); hence, the “Slip-Shod Muse.”

In Plagiarism and Literary Property in the Romantic Period, there is no cold embrace of the literary historian to dampen the reader’s enthusiasm; in evoking the battle between Byron and Wordsworth, Mazzeo has created the taste by which readers will relish her thesis. The shift of focus from Coleridge to Byron is a characteristically refreshing modulation in Mazzeo’s remarkable study. Byron’s thievery (of tones rather than words) is more meltingly sophisticated than Coleridge’s, and therefore beyond capture by a Fruman. In his day, Byron was attacked more virulently in connection with plagiarism than Coleridge. Byron used the traditional Spencerian stanza, which he said he picked up from the Scottish poet, James Beattie. Here is a sample from Beattie’s The Minstrel; or, The Progress of Genius, Book I (1771):

In truth he was a strange and wayward wight,
Fond of each gentle and each dreadful scene.
In darkness and in storm he found delight:
Nor less, than when on ocean-wave serene
The southern sun diffused his dazzling sheen.
Even sad vicissitude amused his soul:
And if a sight would sometimes intervene,
And down his cheek a tear of pity roll,
A sigh, a tear so sweet, he wished not to control.

 

Here is a sample from Byron’s Childe Harold’s Pilgrimage, Canto III:

Self-exiled Harold wanders forth again,
With naught of Hope left - but with less of gloom;
The very knowledge that he lived in vain,
That all was over on this side the tomb,
Had made Despair a smilingness assume,
Which, though ’twere wild, - as on the plundered wreck
When mariners would madly meet their doom
With draughts intemperate on the sinking deck, -
Did yet inspire a cheer, which he forbore to check.

 

Childe Harold’s Pilgrimage (1812), though influenced by Beattie and Wordsworth, was originally intended by Byron to be full of humour. But it is not very humorous. The style seems not to have allowed the poet to do what he was naturally good at (attacking hypocrisy), and it would not be until Beppo (1818) and Don Juan (1819-1823) that Byron would give full vent to his force as a poet. Meanwhile, the Byron of Childe Harold was adept at bringing ego into the narrative, but for all his opposition to Wordswoth’s “simple” poetry, he obviously spent much time immersed in it:

I live not in myself, but I become
Portion of that around me; and to me
High mountains are a feeling, but the hum
Of human cities torture… (Childe Harold’s Pilgrimage III lxxii)

 

One thinks of Wordsworth’s “Lines composed a few miles above Tintern Abbey, on revisiting the banks of the Wye” (1798), in which the colours and the forms of the Lake District’s mountainous scenery “were then to [Wordsworth]/ An appetite,” whereas he found the city “joyless” and “unprofitable.”

Mazzeo’s book is satisfyingly replete with different views of the Romantic epoch’s most important literary tension. It is refreshing to be reminded of Percy Bysshe Shelley’s modus operandi, as he explained it in his essay, “The Defence of Poetry.” As Mazzeo puts it, “Despite Romanticism’s familiar critical identification with the values of ex nihilo originality, Shelley proposes that the ability to appropriate and to illuminate the works of other writers is one of the period’s central aesthetic judgments” (135). Yet, “while Shelley often articulated anxiety over issues of borrowing and over potential charges of plagiarism, he remained invested in strategies of assimilation and in the central importance of this activity to the poetic effort” (142). That image of Shelley labouring between two conflicting aims (just as Byron, Coleridge and others did) is emblematic: Mazzeo’s elegant book shows the architecture of Romantic discourses and tensions from the inside out. It can deliver some home-truths about the Romantics’ creativity without ever degenerating into the reading of an anti-Romantic riot act. It will not embitter as it enlightens. Anyone interested in creativity should read it.

 

Andrew Keanie, Lecturer in English and the history of the Irish book, University of Ulster

Publication date: 31 March 2020

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