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"Plagiarism and 'Atonement'":

I had an op-ed on this little scandalette in yesterday's Wall Street Journal, and the Journal people were kind enough to let me post it here:

Two nurses, both aspiring novelists, helped tend British soldiers during World War II. Briony, the protagonist of Ian McEwan's award-winning novel "Atonement," is fictional. The late Lucilla Andrews is real: She became an author, pioneering romantic "hospital fiction," and also wrote a memoir of her war years.

Therein lies the latest plagiarism scandalette to hit the news, sparked by an article in the British press. To be a credible character in a historical novel, Briony had to do the things wartime nurses did, and see the things they saw. It is thus no surprise that Mr. McEwan read Andrews's book when researching his own; and several passages from his book strongly resemble passages from Andrews's memoir.

"Our 'nursing' seldom involved more than dabbing gentian violet on ringworm, aquaflavine emulsion on cuts and scratches, lead lotion on bruises and sprains," wrote Andrews (to give one example). "In the way of medical treatments, she had already dabbed gentian violet on ringworm, aquaflavine emulsion on a cut, and painted lead lotion on a bruise. But mostly she was a maid," wrote Mr. McEwan.

Plagiarism? Legally actionable? Ethically reprehensible? Bad manners? Or good research, needed to produce accurate historical fiction?

Plagiarism is easy to condemn but often hard to define. This is partly because the legal rules differ sharply from the ethical ones, and the ethical rules in scholarship, journalism and fiction differ from each other. And it is partly because the rules for using the facts uncovered by writers of history—whether memoirists, historians or contemporaneous journalists—must be different from the rules for using the original phrases that the writers created.

Let's start with the law. It generally bans not plagiarism as such, but rather copyright infringement. (Trademark law might play a role in extreme plagiarism cases, but not in the typical ones.) And copyright infringement is both broader and narrower than what most people see as "plagiarism."

For instance, an author can be held liable under copyright law even when he credits the original source from which he copies. The law concerns itself more with protecting authors' ability to profit from their works than with ensuring credit where credit is due. So if I translate Mr. McEwan's novel into Russian without his permission, trumpeting Mr. McEwan's authorship and saying that I am merely the translator, I am a copyright infringer, though not a plagiarist.

On the other hand, an author is not liable for copying the facts that others have discovered, regardless of whether he gives credit. Copyright law doesn't give authors exclusive rights to facts, because such a monopoly would undermine debate, scholarship and literature. If I write a scholarly legal article that uses without attribution historical facts uncovered by another scholar, my failure to attribute is a serious ethical breach—but not copyright infringement.

So on to professional ethics, which properly differs depending on the profession. Academics have the most stringent obligations. If I write an academic work using, without attribution, facts uncovered by another historian, I commit two sins: First, I falsely claim originality for my own work. Second, I wrongly deny a scholar credit that is important to the scholar's reputation. The academic must therefore scrupulously attribute those facts that others have uncovered, and the long and heavily footnoted format of academic books and articles makes this easy.

But the rules for newspaper articles that mention historical matters are different. Such articles usually don't claim originality of historical research; no reader would assume that snippets of history in an article about modern-day Iraq stem from the journalist's own archival research. The articles do not generally deny historians due professional credit: Scholars get professional respect chiefly based on other scholars' use of their work, not based on citations by reporters. And because space is short, and good journalism often relies on multiple historical sources, newspaper articles can't be expected to acknowledge each historian whose work the journalist used.

The rules for novels are in between. Novelists are similar to journalists, but they do have space at the end of the book to briefly acknowledge the historical works on which they rely, without distracting from the novel's flow. If you've relied substantially on another's work, acknowledging this is the kind thing to do. Omitting the acknowledgment probably isn't unethical; it's not a lie, or the denial of the credit needed for success in the original author's profession. But it isn't very nice.

Yet what about copying not just facts, but also another author's words, either literally or in a close paraphrase? Would a general acknowledgment at the end of the book be enough to justify this? Or is such copying impermissible, at least unless you expressly note it using quotation marks, or by writing "as Lucilla Andrews said"? In academic work, the answer is simple: Quote the original, and insert a footnote at the place you quote it. But what about a novel?

A historical novel, to be accurate, must borrow those words needed to accurately reproduce the historical facts, even when the facts were uncovered by others. If nurses treated ringworm by dabbing gentian violet on it, that's what they did, and novelists must be able to say so. Nor can a novelist note the borrowing using quotation marks and footnotes, as they would interrupt the novel's flow. Writers who strive for factual accuracy must thus remain free to closely paraphrase the factual accounts of others.

On the other hand, when the historian or memoirist depicted the facts in a colorful way that she herself created, the particular words shouldn't be copied, at least without express acknowledgment. A historical novelist is responsible for creating his own colorful descriptions.

So where does this leave Mr. McEwan? Likely not guilty on any of the counts, if the account in the newspaper that first broke the story (the Nov. 26 Daily Mail) is thorough. Mr. McEwan borrowed facts, and those words that accurately described the facts. He is not guilty of copyright infringement, or of taking another's original expression without specific notation. And while he did rely on Andrews's autobiography, his acknowledgments page noted being "indebted" to Andrews and her book. Any such acknowledgment could always be made more prominent; but it appears to have been prominent enough.

More broadly, we should recognize that not all use of another's words requires detailed acknowledgment. Words represent facts; and facts, once revealed, are there to be used, including in novelists' unfootnoted prose.

Evan Maxwell (mail):
As a journalist, novelist and non-fiction author, at one time or another over the last 40 years, I appreciate all of the nuance in this exploration of so-called McEwan "plagiarism." It is virtually impossible in today's media-rich environment to avoid exposing one's self to all kinds of influences and sources. There are some broad standards to bear in mind, but recent media hysteria over loosely-sourced or paraphrased material by everyone from Bob Dylan to Doris Kearns Godwin is just plain crazy.

Years ago, writing a piece of popular historical fiction based on the Klondike Gold Rush of 1898, I became aware rather quickly of the simple fact that there were only several dozen accounts of the event available in the historical records. These contemporaneous accounts became the basis of a second wave of popular and scholarly histories and then a third and a fourth. But the same raw facts cropped up again and again all the way into the present day, including in my own book.

And usually these raw facts went unattributed.

The moral, for a writer, is that nowadays, with Google to track down original sources in milliseconds, you'd better shut yourself in a room and never do a bit of research lest some scandal-mongering journalist might seek to stick you with the "plagiarist" label for the sake of a cheap headline.

This is what seems to have happened to McEwan, since, if memory serves, he only added the acknowledgement of the Andrews book to later editions of his own, and only after some journalist stuck him in the ribs in print for what seemed to me to be a minor breach of decorum.

Standards change. Ten years ago, before the development of the present environment of "Gotcha Journalism," such an issue would have been laughed off the public stage.

Evan Maxwell
12.13.2006 2:08pm
BTD_Venkat (mail) (www):
So where does this leave Mr. McEwan? Likely not guilty on any of the counts,


Thank god! I've enjoyed all of his novels and it would have been a let down.
12.13.2006 2:09pm
Hoya:
I don't see why he is cleared of all counts. It is not just the facts, but that the words used employ the same sorts of sequence and rhythm as the words in another work, and in a situation where it is very likely that the reader will not know the original and know that McEwan's work is riffing off of it.

If I write a novel and include the line "To be, or not to be -- that is the question," everyone will know that I am (probably in a ridiculous way) alluding to Shakespeare, and there may even be some point to drawing the audience's attention to the fact that I am so doing. If Shakespeare were an obscure author, and I were to take his line "To be, or not to be -- that is the question," then I would be ripping him off. I don't see why McEwan isn't ripping off.
12.13.2006 2:34pm
Richard Aubrey (mail):
It would seem that the most difficult example of this to avoid is the memory of something striking one read or heard long ago.
There are only so many words to describe a particular thing, and rules of grammar and the need to be interesting reduce the number of useful combinations.
Perhaps, looking at an unhappy couple in a restaurant, I might remember without knowing I remember a felicitous description.
In the example given, this is not likely to have been the case.
It seems reasonable to think the not remembering one remembers something and writes it down as if original is quite common.
12.13.2006 2:57pm
Tracy W (mail):
Ah well, if what McEwan did is ripping Andrews off, then I'm all for novelists ripping people off.

Shakespeare himself built on a vast amount of past work. What novelist doesn't? Ideas, words, phrases are re-used and re-used in the arts. Look at the development of the novel itself - it's not a form that's been around for eternity. Is everyone who writes a novel using the methods developed by Defoe and Richardson ripping them off?

McEwan's using similar phrasing is not going to stop anyone reading Lucilla Andrews work, and it's not like he's just lazily copied all her work and claimed the credit. Since he's cited the autobiography, he hasn't done anything wrong. People are way too quick to toss around accusations of plagarism these days.
12.13.2006 3:01pm
Attorney SF (mail):
I agree with Hoya's comments above. Here's one brief overlap that I cribbed from Slate's Jack Shafer, who himself cribbed from the UK paper:

Lucilla Andrews: "The right half of his face and some of his head was missing. I had consciously to fight down waves of nausea and swallow bile, wait until my hands stopped shaking and dry them on my back before I could retie the bow... [After he dies in her arms, a Sister says to her] 'Go and wash that blood off your face and neck, at once, girl! It'll upset the patients.'"

Ian McEwan: "The side of Luc's head was missing ... She caught the towel before it slipped to the floor, and she held it while she waited for her nausea to pass ... fixed the gauze and retied the bows ... The Sister straightened Briony's collar. 'There's a good girl. Now go and wash the blood from your face. We don't want the other patients upset.'"

This is not description of facts of the same sort as, say, the procedure of "dabbing gentian violet on ringworm." Instead, McEwan is simply reusing a historical scene described by Andrews in McEwan's novel, using words that are remarkably similar to Andrews' own. The dialogue is made more effective because it actually happened.

Now, you could argue that such paraphrasing-slash-plagiarizing should be allowed because we want more Ian McEwan novels (I like 'em too). You could also argue that McEwan's acknowledgments suffice to justify his liberal reliance on Andrews' memoir (though it seems like cheating to me). But I think Prof. Volokh's uses too broad a brush stroke in calling these merely "facts," rather than evocative non-fiction *prose* that describes Andrews' work experience.
12.13.2006 3:40pm
John (mail):
It is extremely rare that an author, in describing any facts, needs to use the same language as another author describing those facts. Descriptions of facts are not math formulas that are the same in telling after telling. To use another's words when it is not necessary is surely plagiarism.
12.13.2006 4:26pm
Whadonna More:

dabbed gentian violet on ringworm, aquaflavine emulsion on a cut, and painted lead lotion on a bruise


Seems derivative (in the copyright sense) to me. Fair use may excuse it, but otherwise, verdict to plaintiff with minimum statutory damages awarded, parties pay their own lawyers.
12.13.2006 4:28pm
Choy Mu (mail):
To plagerize someone else:

Steal from one person, it's plagerism; steal from twenty, it's research.

While individual passages (with many elipses) may look and be derivative, look at the dialogue for the nun above. In the first example she is protrayed as a "ruler on the back of the knuckels" nun; in the second a, a sweet caring nun. It's subtleties like this that make the difference (to me) between being plagerism and research.
12.13.2006 4:48pm
Steve Lubet (mail):
mcewan and novelists aside, i wonder about eugene's statement that an academic must scrupulously footnote all "facts uncovered by another scholar." if taken literally, that would require line by line (or even phrase by phrase) footnoting -- typical in law review articles but not at all the standard practice in history.

i picked a couple of books at random from my shelf -- don fehrenbacher's pulitzer prize winning The Dred Scott Case, and sean wilentz's recent The Rise of American Democracy -- and both have considerably fewer than one footnote per page, leaving most facts undocumented.

surely there is a point at which fact enter the public domain, even if they were originally uncovered by someone else. may i suggest that the problem really arises when a scholar attempts to convey the impression of having uncovered new information (rather than interpreting known facts), without attribution to the actual uncoverer.

after all, most common knowledge was unearthed by someone once.

i think eugene's standard sets a level of citation that is far beyond the professional convention in history, and in any event unachievable.
12.13.2006 5:03pm
Federal Dog:
"and both have considerably fewer than one footnote per page, leaving most facts undocumented."


How then does the reader fact-check?
12.13.2006 5:25pm
BobH (mail):
My wife is a high-school English teacher in a school for highly gifted kids (entry criterion = 145+ IQ). She takes very seriously the job of teaching them to write, and she takes very, VERY seriously the problem of plagiarism -- and it is a very VERY serious problem. Her rule, boiled down, is: "If the thought did not spring full-blown from your own head, you must attribute it." She figures this is a habit they ought to adopt early on, and that if subsequent teachers, professors, editors, or whoever have a less stringent standard, the kids will be no worse for having worked under the stringent rule at the outset.

In addition, she (as well as the other English teachers in her school) runs all students' papers through lookitup.com in an effort to deternmine whether they are copying. If the answer is yes, the student gets a zero on that paper and his or her deportment grade for the semester is lowered; if it happens again, the student fails the class.
12.13.2006 5:35pm
Steve Lubet (mail):
writing history is an art in which the author must strike a balance between readability and the availability of fact checking. just ask yourself which you would rather read, fehrenbach's masterful history of the dred scott case (or, say, adam hochschild's impressive Bury the Chains) or the typical law review article with its phrase-by-phrase citation. the latter are great for fact-checking, but otherwise famously unreadable.
12.13.2006 6:12pm
Mike BUSL07 (mail) (www):

She figures this is a habit they ought to adopt early on, and that if subsequent teachers, professors, editors, or whoever have a less stringent standard, the kids will be no worse for having worked under the stringent rule at the outset.

Unfortunately, they might indeed be worse off. Overly-stringent attribution rules tend to stifle creativity, according to my law school experience anyway. The penalties for plagiarism are so strict that most students play it very safe, so that most papers I've come across are devoid of original ideas. I am talking about writers who are perfectly capable of expressing those ideas in conversation - just not in a cert paper or seminar essay.
12.13.2006 8:05pm
Ship Erect (mail) (www):
Her rule, boiled down, is: "If the thought did not spring full-blown from your own head, you must attribute it."

When she tells this to her students, does she attribute this rule to the source from which she learned it?
12.13.2006 8:16pm
Mike BUSL07 (mail) (www):
Hmm, Ship, I like your blog. :)
12.13.2006 8:50pm
MTF:
It's just as simple as John (and Jack Shafer) make it: what McEwan is selling is his way with words. If he takes someone else's words and calls them his own, no general statement of indebtedness at the end undoes the damage. The problem is not even partly that he's describing the same pattern of facts that he discovered in his research; of course that's what he's supposed to do. The problem is that he takes someone else's account of those facts and uses it as though it were his own.

It seems to me that the Defenders here (not necessarily Eugene, he seems not to have fallen into this problem) are generally worried that if we condemn this plagiarism we lose the fiction of McEwan, and also the host of other authors who write in to the Telegraph to take his side. That doesn't have to be, though. It's a really good book, Atonement is, and it remains so even though it has this flaw.
12.13.2006 9:04pm
LTEC (mail) (www):
I think we all agree that McEwan should include an acknowledgement to Andrews somewhere in his book.

But what about the incident of the nurse and the blood? The issue here is not the exact wording, but the details of the event itself. The book was better for having included this incident and the readers are richer for having read it. I'm glad that McEwan actually wanted to learn something about wartime nursing before writing this book.

What about the evacuation at Dunkerque? My guess is that McEwan read a lot about this, and that there is a great deal of truth in his presentation of this event. Some will look more closely into this and call it plagiarism.
12.14.2006 11:26am
Attorney SF (mail):
With all due respect, LTEC, the issue here is the exact wording. In my view, there's nothing wrong with McEwan researching a historically true event and deciding to use it as a source for a scene in his (obstensibly fictional) novel. But there's something wrong when the words he uses closely resemble those used by someone else to describe the historical event. I'm glad McEwan wanted to learn about wartime nursing too; I'm less glad he decided to copy Andrews' biography and pass off her words as his own.

And I don't think an acknowledgment here -- e.g.. "I am indebted to Ms. Andrews for her insightful autobiography" -- conveys what's really going on. It'd be more accurate to say, "Certain scenes in this novel, including dialogue among characters, are taken directly from the autobiography of Lillian Andrews." But somehow I suspect McEwan, and the many other famous novelists who rely on historical source material (Thomas Pynchon). are loathe to admit their reliance on the words of others.
12.14.2006 1:43pm