Plagiarism is Too Easy
I haven't read Dan Brown's, "The DaVinci Code," and so can't offer much of an informed opinion on whether he actually plagiarized the work of other writers in creating his best-selling novel. Nevertheless, I read the news stories about the case with morbid fascination. Several days ago, Brown triumphed in a British court over two writers who sued him for copyright infringement. As a consequence of losing, Baigent and Leigh now face legal bills of nearly $4 million under the "loser pays" British civil justice system. When I first heard that, I predicted that no one would ever take on a best-selling novelist over plagiarism again, no matter how convinced they were that their work had been stolen. But I was wrong.
Now a Russian art historian has filed suit in Russian and American courts again accusing Brown of stealing another writer's work for his novel. No one can say the Russian is piling on and looking for an easy payday after what happened to Baigent and Leigh. The reason he is doing it is that plagiarism and its bastard cousin, intellectual property theft, tend to make the victim writer crazy angry. If he doesn't feel that way when he first reads his stolen words, he will by the time he gets bitch-slapped by the book or magazine publisher who aided and abetted the plagiarizer.
I know, because it happened to me in 2004. A writer named Jeff Tietz, a freelancer for Harper's Magazine, helped himself to passages from my 1986 book about the Centralia mine fire, Unseen Danger, to use in his own article about the famous Pennsylvania environmental disaster. No credit was given, although Harper's admitted in a subsequent letter to my lawyer that it knew Tietz had used my book as a source. One quote was lifted nearly word-for-word. About a dozen others were loosely rewritten to one extent or another. It was the lazy man's approach to journalism--take your research from somebody else and don't give him any credit. If Tietz had done that at a newspaper, he would have been thrown down the stairs and out onto the street. Newspapers take plagiarism seriously, which is why I assumed Harper's would as well. I was wrong.
My lawyer asked for a printed apology and very modest damages, mainly my expenses and a payment of three times whatever Tietz got for the article (probably in the $5,000 range). That seemed fair to me, but the magazine wasn't interested. Rodger D. Hodge, who edited Tietz' article and who has since been promoted to editor of the entire magazine, said in a letter to my lawyer that my claim was "preposterous and defamatory."
"It is unfortunate that your client feels such an unreasonable proprietary interest in this story," Hodge wrote to my lawyer. "His expectations are symptomatic of an unhappy trend in contemporary culture whereby ownership rights are increasingly asserted in circumstances that have no basis in our legal tradition...Were the logic of your demand sound, historical culture would simply grind to a halt and we would be left with nothing but the inane blatherings of the nightly television news."
Of course, all Hodge would have had to do to avoid this unpleasantness was make Tietz attribute the material in the original article (Feb. 2004). That would have been the decent thing to do, in addition to the legal one. The problem is that Hollywood values have infected the magazine and book publishing world. Intellectual property theft is so rampant in the film world that the union representing screenwriters has a detailed procedure for determining who deserves credit on a script. But before a book becomes a script, it's pretty much fair game. Some claims of plagiarism are made-up or frivolous, but others aren't. A big reason it happens so often is that, legally, plagiarism is nearly a no-lose proposition for the writer/publisher/filmmaker/perp. People like me can make a moral case out of it, but that doesn't get you far in court.
Two lawyers declined to take my case. Both agreed that I had been plagiarized, but said U.S. and Pennsylvania copyright and intellectual property law would not allow me to win damages. But what about the word-for-word quote, I protested. I obtained that in an exclusive interview in the 1980s with a man who is now dead. Too bad, they said. Those aren't your words--they're his. Harper's and its lawyers had clearly calculated their potential liability for the plagiarism they must have known had occurred, and determined they could bitch-slap me in the name of "free expression." I was small, a nobody, with no major publisher/muscle backing me up.
But I had the last laugh. Tom Scocca, who writes the well-read media column in The New York Observer, took up my complaint and subjected Harper's and Hodge to the scorn they deserved.
The Authors Guild recently sent out a survey to members seeking comment on a proposal it is discussing with Congress to create what in effect would be a small claims court for copyright infringement cases. It supposedly would make it much easier and cheaper to bring an action against a publisher who let a writer plagiarize. Don't hold your breath, though. The current system has both winners and losers, and the winners have all the money and power.