The Volokh Conspiracy - "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.

	[Eugene Volokh, December 13, 2006 at 12:44pm] Trackbacks "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.