Wrong. Most people would agree that it is unethical, and it can ruin a writer’s career. But it is not illegal.
In 1949, Twentieth Century Fox produced a television series called “Crusade in Europe.” The series was based on a World War II book by then General Dwight D. Eisenhower. The copyright for the series expired in 1977, and it entered the public domain.
In 1988, Dastar Corp. produced and sold a series of video tapes that borrowed heavily from the earlier television series. Since the series was in the public domain, Dastar had every right to use that material. But Dastar did not credit the original series, which made its use plagiarism.
There was no law prohibiting plagiarism, and Twentieth Century Fox knew that it didn’t have a case under the copyright laws. So it tried a different tact.
Twentieth Century Fox argued that Dastar’s unattributed use violated the trademark laws. Those laws prohibit “reverse passing off,” which is the practice of putting your own label on someone else’s goods. Twentieth Century Fox argued, in essence, that by using footage from the series without attribution, Dastar led consumers to believe that it had produced the material.
The theory sounds good on its face, but consider this.
Copyrights last for a limited duration. And although people argue over whether the length is too long or too short, it is still limited. (For most works created after 1978, the term is life of the author plus 70 years. In 1949, the term was 28 years unless renewed, which Twentieth Century Fox failed to do.)
Trademarks last as long as you use them, which could be forever. Because of this difference, Twentieth Century Fox’s reading of the trademark laws would make them conflict with the copyright laws, and courts don’t like that, especially since the framework for the copyright laws is included in the U.S. Constitution.
So what did the Supreme Court say? “[O]nce the . . . copyright monopoly has expired, the public may use the . . . work at will and without attribution.” (Pgs. 33-34.)
Plagiarism is not illegal, so Dastar won the case.
Still, that doesn’t make it right, nor does it make it prudent. It's never a good idea to pass someone else's words off as you own. Writers can lose their jobs and their reputations that way.
It’s easy to avoid plagiarizing: simply give the author credit. Or if you don’t know who wrote it, attribute it to “author unknown.”
Join me next month for the final post in this series: The Case of the Obstinate Movie Star. And anyone from my generation will recognize the name.
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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.