In this installment, let’s suppose you write features and other articles freelance or for smaller regional publications. Now let’s suppose that you get wind of an interesting story, human interest, an odd event, the quirky commemoration of an obscure event. You employ your regular drill: asking questions, making contact, finding out who knows what, where, and why. Then you write an article, all on your own, no outside sources, just you and the subject, and your observations, insights, opinions, and the like. It is submitted and published. Then suppose that you learn, through the tirade of an angry editor who put the story in print, that an article about the same subject appeared in another publication many months before. The editor tells you that he has received communication from the offended publication that you lifted the article and did not cite it, and that his publication will no longer print your work, and that, despite all your protests and your production of every line you put in your notes, drafts, and the like, they will not make any effort to defend you or themselves. Oh, and your rent is due.
What can you do? Sadly, there is no central board of journalistic integrity, nor any arbitration panel for the prevention of plagiarism to which you can appeal. Apart from a code of ethics that is purely volitional, there is no enforcement body to ferret out plagiarists and punish them, or to exonerate the innocent. Nor is there any board to make spineless editors take a stand.
Emmett Tyrell writes in “The dark times at The New York Times grow darker” May 15, 2003 Townhall.com, that fine journalists were tainted by the Jayson Blair scandal, and that “the real culprits in th[e The New York Times] scandal are the editors, or at least some of the editors.” Isn’t that the function, or at least one of the functions, of an editor? To know when potential conflicts between stories might arise? On paper, maybe. In reality, a heavy burden is placed upon the writer to ensure that he or she does not inadvertently include an uncredited source in a piece of work. And, the burden grows heavier as plagiarism increases and intellectual property law strengthen exponentially year to year.
In law, a central element of every offense, civil or criminal, is intent. The accused must have intended to act as he or she did, even if the final consequences of the act are not readily foreseen. In contrast, because plagiarism is a form of fraud, it requires a sort of hyper-intent, scienter is the legal Latin term for it, meaning “guilty mind.” That is, to commit the act of plagiarism an individual has to knowingly and with the intent to pass the work off as his or her own, take steps to purloin the work, conceal or obfuscate its origin, and put a by-line on it. This may be hard to prove in law, but the rumor mill requires little more than saying something to make it so, or at least have the consequences of being so.
To be wrongly accused of such an activity places a heavy burden on a writer. For a wronged writer, one who has seen, or could see, his or her livelihood evaporate, actions for defamation may be appropriate, remedies for which are remuneration, retraction, and ideally, repair or restoration of reputation. Defamation actions can be effective if an editor, especially after having been shown reams of material supporting the writer’s innocence, nonetheless repeats
or perpetuates the assertion that a writer committed plagiarism. In an instance where the distant publication, with reckless disregard of the truth of its assertions, states to third parties that it has been plagiarized, the writer may have a defamation action against that entity, particularly if the basis in fact for having made the accusation is weak, non-existent, or could have been easily checked out beforehand.
Even then, things are not easy. There is little available to a writer to force an editor or publisher to speak up for or defend her. In the end, little is left but litigation, a bumpy, uncertain, and expensive process, even when you prevail.
Whoever said, “An ounce of prevention is worth a pound of cure” (Ben Franklin maybe though he may not have cited his source) was not far off the mark. Inasmuch as nearly every newspaper, magazine, or periodical has an Internet component, it is wise and relatively easy for any writer to do a little web browsing to see what might have been written on a subject in which they have an interest. If for no other reason than the current climate in intellectual property makes anyone who puts anything in print a potential defendant in an infringement action, or the target of an unfounded accusation of plagiarism. There are plenty of things a writer might want to see following his or her name, defendant or plagiarist should not be one of them. That said, there is an inherent risk of accusation of plagiarism, infringement of copyright, and so on that every writer takes. It has, unfortunately, become naive in the extreme to think that “I haven’t done anything wrong” will carry the day for you. As a veteran lawyer once told me, when I equally naively assumed the same thing on behalf of a client, “Any mental defective with five bucks can ruin your life.” A somewhat cynical point of view, I’ll grant you, but all too true, especially in this arena.
This article is not intended to offer legal advice, that is what you hire your attorney to do. But it is meant to convey that writers should undertake whatever actions they deem necessary to protect themselves, preferably before the fact, but certainly after. As there is no official or governmental regulatory body to which a writer may complain, nor any set of rules the violation of which meets penalties with real teeth, the writer must contend with a pretty rough and tumble world, and many times, alone.
- Neil Wilkinson
