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Old 08-07-2009, 10:50 PM   #31  
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Originally Posted by kiramira View Post
There isn't much hope for an obscure author claiming against an obscure eBook.
I don't think that obscurity is going to be nearly as much of an issue, as you'd think. I think the type of plagiarism alleged will be most significant issue. If you look closely at the cases that are lost, they're usually ones in which people are talking about "general ideas" being stolen. Stealing general themes and ideas isn't plagiarism (The book "Steal this Plot," makes that case very well), stealing specific plot components are, but generally t there's a lot of gray area here - if you steal "enough" ideas and themes (from the same source) it can become a clearer (and more successful) case of plagiarism.


The easiest to prove (and having the far higher lawsuit success rate) are cases in which the material is directly "lifted" from the original material regardless of the obscurity of the author making the accusation.

If this is a "theme or theory" litigation, he will fail. If it's a direct theft of entire phrases, he probably will prevail. And if it's somewhere in the middle, his chances of success probably also lie somewhere in the middle.

Plagiarism has a lot of gray area, so it will depend largely on how close the case is to the extreme ends. Even if it's an open-and-shut case in that regard, he could still lose but it is less likely (at least if he's able to stay in the fight). Oprah would have the resources to keep it unsettled and in the courts forever. I'm assuming this guy's lawyer is taking the case on contingency, but unless the attorney has unlimited resources, Oprah could stil "win" just in the waiting game.

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Old 08-08-2009, 01:41 AM   #32  
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But the thing is... there aren't any original ideas anymore. There are tons of vampire-human love stories, TV shows, etc. Scott wasn't the first to write about it. She's also not the first to write about a husband who calls his wife "love," she's not the first to write about a vampire-human wedding, nor sex on a beach.

If it was specific details, then she'd have a case, but from what I saw, it's more generic. Plus, why'd she wait a whole year? It's a very popular series, everyone in the US has heard of it practically.

There's a difference between stealing words and specific ideas and plot themes. But vampire-human isn't specific. The Dan Brown thing is more specific, but that rumor has been around for a loooong time (that Jesus and Mary Magdalene had children).


There's also appropriation and satire. For example, there is a book that has been published called "Pride and Prejudice and Zombies" which is basically a satire of Pride and Prejudice written with zombies. It's not plagiarism, and is appropriation. But the thing is, everyone knows what Pride and Prejudice is, so it's OK. And Austen is dead and has been for a long time.

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Old 08-08-2009, 01:46 AM   #33  
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I don't think that obscurity is going to be nearly as much of an issue, as you'd think. I think the type of plagiarism alleged will be most significant issue. If you look closely at the cases that are lost, they're usually ones in which people are talking about "general ideas" being stolen. Stealing general themes and ideas isn't plagiarism (The book "Steal this Plot," makes that case very well), stealing specific plot components are, but generally t there's a lot of gray area here - if you steal "enough" ideas and themes (from the same source) it can become a clearer (and more successful) case of plagiarism.


The easiest to prove (and having the far higher lawsuit success rate) are cases in which the material is directly "lifted" from the original material regardless of the obscurity of the author making the accusation.

If this is a "theme or theory" litigation, he will fail. If it's a direct theft of entire phrases, he probably will prevail. And if it's somewhere in the middle, his chances of success probably also lie somewhere in the middle.

Plagiarism has a lot of gray area, so it will depend largely on how close the case is to the extreme ends. Even if it's an open-and-shut case in that regard, he could still lose but it is less likely (at least if he's able to stay in the fight). Oprah would have the resources to keep it unsettled and in the courts forever. I'm assuming this guy's lawyer is taking the case on contingency, but unless the attorney has unlimited resources, Oprah could stil "win" just in the waiting game.

I totally see what you're saying, and I'm not seeing it with the Breaking Dawn-The Nocturne issue.

There are no direct phrases stolen like in the Wikipedia article I mentioned.

And obscurity is fairly relevant. The people who used JK Rowling sued based on a very limited print of a 45-page or so booklet that their father (or grandfather, I can't remember) wrote about a boy wizard. If it's a very popular book, it's very easy to prove that the alleged plagiarizer read it and had access to it. But if it was a book that, say, was only published limitedly in Canada, then they really won't have a case. If the author in question had zero access to it, you can't plagiarize something you've never heard of.
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Old 08-08-2009, 11:16 AM   #34  
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There's also appropriation and satire. For example, there is a book that has been published called "Pride and Prejudice and Zombies" which is basically a satire of Pride and Prejudice written with zombies. It's not plagiarism, and is appropriation. But the thing is, everyone knows what Pride and Prejudice is, so it's OK. And Austen is dead and has been for a long time.
Actually, satire is a legal exception to plagiarism law. Copyrights expire after a certain amount of time (I think it's roughly "a lifetime," somewhere between 60 and 80 years), although it is possible for the heirs to the authors estate to renew the copyright (indefinitely, I believe).

Many people think that out-of-print means "free to steal from," but it doesn't.

Still, many authors never pursue plagiarism cases, either because they never discover the plagiarism, or because they don't care to pursue the matter for a variety of reasons. The more famous the work, the less likely the author is to pursue it (filing a plagiarism case can hurt a well-liked author because it may make them appear to be vindictive or a poor sport).

Also the more a work is stolen from, the more it becomes a part of the culture. Companies with trademarks fight this all the time (not exactly plagiarism, but an off-shoot of copyright law), because once their brand name becomes common usage, it can no longer be copyrighted, so companies such as Kleenex and Xerox fight to keep their trademarks from being used as generic words (mostly unsuccessfully) in books.

In some genres (especially science fiction, fantasy and romance) there's so much plot-recycling that goes on, that plagiarism is the most difficult to prove because it is so commonplace. Once a plot-device or even a particular scene becomes an "acceptable practice in the genre," then it no longer meets the criteria of plagiarism.

One of the criteria for plagiarism is "originality," if the material can be proven not to be original, but rather a common plot devide, that diminishes case for plagiarism. In the case of the vampire novels, I think that's exactly what the defense will shoot for - trying to find other vampire novels that contain those elements to prove that it isn't an original idea (or is no longer an original idea - naming a vampire Dracula for example, was once, but is no longer, original). If the defense cannot find books with the same number of similarities, that would actually hurt their case. Because the number of similarities "in combination" is also considered. If your book contains one scene very similar to another author's, that's a lot different than 2/3 of the scenes being very similar. It's a case of coincidences adding up to the point that coincidence is no longer a reasonable explanation.

It's a stereotypical view, but I think most prolific authors largely ignore plagiarism issues, because it would cut into their writing time, and the risks/consequences of pursuing the case aren't worth the potential benefit. Although this stereotype hurts authors, because any that DO file plagiarism lawsuite are often thought petty and vindictive.

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Old 08-08-2009, 08:12 PM   #35  
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Wow!!!
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Old 08-08-2009, 09:02 PM   #36  
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I definitely agree and understand everything that you said, but just one question: wouldn't they have to prove that Meyer had actually, in fact, read The Nocturne? Because if she hadn't read it, then she couldn't have plagiarized from it. If it was a popular book, I think it would have been easier to prove.

I just hope this whole thing blows over, you know? I'm not the biggest Stephenie Meyer fan, but if she really didn't plagiarize, then she doesn't deserve this.

Oprah, however, isn't really a writer. And it's doubtful she actually wrote the poems that she sold herself. If someone from her company did in fact steal, then they should pay for it. But definitely NOT a trillion dollars. I doubt her company is even worth that much.

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Old 08-08-2009, 10:12 PM   #37  
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I definitely agree and understand everything that you said, but just one question: wouldn't they have to prove that Meyer had actually, in fact, read The Nocturne? Because if she hadn't read it, then she couldn't have plagiarized from it. If it was a popular book, I think it would have been easier to prove.
Not at all, because how exactly would one prove she has read any book, even a very, very popular one?

In essence the proof is in the number of similarities. Can coincidence explain the similarities or are there so many similarities that coincidence is not a likely explanation? Whis is the most reasonable explanation, coincidence or having access to the source material.

Of course the source material being obscure makes coincidence more likely, but how much more likely? Again, it will depend upon how many and how striking the similarities, and that will all have to be taken into account. Now, if they find the book at the local library in the town where the newer author resides, that is a piece of evidence that would work in favor of the possibility of plagiarism. If they subpoena library records and find out the newer author checked out the book, that's more evidence. If she wrote a fan letter, or belonged to a book club that discussed the book, or if she told a friend or blogged about the book...... countless pieces of evidence can come into play that she had access to the book - but it can boil down to how many similarities are there. Are there too many similarities to reasonably conclude that she did not in any way have contact with that book?


For example, if I write a relatively long poem that's published in my high school literary magazine (about 1200 students each year, and only a small fraction buy or read the literary magazine/ When I was a student we rarely broke 200 copies) and an identical poem shows up on a teenager's website 20 years later, what is the most likely explanation - that the 19 year old came up with an identical poem coincidentally, or that she somehow had access to my poem?

The number of similarities is actually part of the evidence that she did in fact have access to the original work. The jury (or judge) has to decide which is the more logical explanation. Of course the liklihood that she had access to the book is considered, but it's only one factor. There doesn't have to be proof that she read the book, only that it is a more reasonable explanation for the similarities than coincidence.

As a one-time vampire-fiction fan myself (actually I now prefer werewolf fiction), and having met many vampire-fiction fans as fanatical (pun intended) as myself, I know that there's a large number of us who hunt down the books in our genre. About 20 years ago, I was so into vampire fiction, that obscure or not, if it was a vampire romance, I was more likely than not to have read it, and 90% likely to have the plot summary in the database I used to compile a listing of vampire books I had read, and wanted to read. I even bought out-of-print issues of "Romantic Times" magazine as resource materials (and copied the plot summaries into the listing). It printed out to about 30 pages, and I'd take the listing with me to used bookstores in search of the ones that I wanted most (I used a five star system).

Sound crazy? Yeah, well I got the idea from other sci-fi/fantasy/paranormal fans (and even bought another woman's list to add to mine). I also subscribed to several fanzines and romance review magazines. Again, it will boil down to which is the more likely explanation coincidence or plagairism. It's not at all impossible, or even unlikely that an obscure out-of-print novel (especially one that was actually published) would not be well-known by a fan of the genre. In fact, I knew many people who also voraciously read material submitted to writer's groups, fan fiction groups, fanzines (in print or online).... Obscure doesn't mean what it used to.

By the way, the poem incident did happen to me, though the girl didn't try to pass the poem off as her own, she listed me as the author of the poem (I only found it by googling my own name).

I emailed her, because I thought it was so cool, and asked where she'd read my poem, because there weren't that many options (I thought maybe she'd found it in her parents' stuff and that one of her parents might be an old friend), but it turns out that she had been a student at the high school I graduated from, and was on the literary magazine staff (as I had been) and that the mentor for the magazine was the same teacher I had had, and she'd read all the old literary magazines and had loved the poem and illustration (the illustration was drawn by a boy I was dating at the time, brought back a lot of memories).

Sadly, I may have creeped her out, because she removed my poem from her website soon after. Or she may just have outgrown the poem. It was a really dorky poem (the title was "The Unicorn," and I don't remember all of it, but it was five or six stanzas and the first line was "Out of fantasy he's born, the proud and valiant unicorn," and the last line was "Who dwells in reality, is it I or is it he?) Yeah, super dorky (anyone wanting to plagiarize is free to, blegh).

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Old 08-09-2009, 10:10 AM   #38  
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Unless the paragraphs, sentences or word sequences are lifted directly from another source, the issue of plagiarism becomes quite grey. According to Thomas Keneally:

If it is sufficient to point to a simultaneity of events to prove plagiarism, then we are all plagiarists, and Shakespeare is in big trouble from Petrarch, and Tolstoy stole the material for War & Peace.

It isn't enough to show the similarities in word structure or theme. It isn't enough to point to similarities. It comes down in legal terms to whether or not intellectual property was stolen and to copyright infringement issues. Plagiarism in and of itself is not strictly illegal. The copyright infringement issues are. These are terrifically hard to prove, because even though it may seem obvious to us, judges consider things like the whether the central themes abstracted are general, or of an insuffient abstract level to be protected by copyright law. For example, IF you read a book about a historical event, then write a fictional account of the same historical event and don't cite your source, you will not be found guilty of copyright infringement. Can you copywright history or non-fictional historical interpretations? The general theory is "no". This is what happened in the Dan Brown case. Although the central themes were lifted from Holy Blood Holy Grail and the judge acknowledged this, his decision said that the themes were not of sufficient abstraction to warrent protection under copyright laws. And since Holy Blood Holy Grail was passed off by the authors as a non-fictional historical interpretation, the judge further decided that a work of fiction was not required to cite the use of historical background documents.

And another issue that is paramount is the decision to conceal the source -- if cited, you can use whatever you like. It becomes a copyright issue IF you attempt to conceal the source.

Unless you do something blatant, like republish an entire book under your own name, as Wolfgang Koepmann did when he took a published holocaust memoir and republished it as a work of fiction under his own name, there is sufficient grey area to cause massive confusion.

Perhaps this says it best:http://www.theage.com.au/articles/20...748128612.html
The last thing a literary critic should be is literal-minded when looking for plagiarism beyond direct furtive copying. Perhaps, more than ever, it is necessary to bear in mind G.K. Chesterton's caution against losing sight of the imitative element in the creative process: "To see the similarities, without seeing the differences, seems a dangerous game."

Kira

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Old 08-09-2009, 01:31 PM   #39  
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As a writer who has been a victim of word-for-word plagiarism, it's more about the outrage than the money. A cease-and-desist approach was acceptable to me, although the situation was nowhere near on this scale.

My thought is that it is a publicity thing, as odds are that people will recall the name later on but not the reason, if this guy publishes later. He may also be hoping for some settlement cash, as companies sometimes settle out of court to avoid the hassle. Oprah has lawyers to fight the lawsuit ... and also to tell her that it would be really stupid to put her name on someone else's work. The chances of her getting caught are astronomical. There are ways that writers can protect themselves from their work being stolen and establish a record of their drafts. All of my work that isn't available to the public yet is either safely on my own computer or has gone through the process of creating a legal record of it. Since it is a DRAFT that he claims was stolen, there is even greater burden to show that Harpo had access to it and it truly is stolen.

I was a lot more worried about theft of my writing when I was a new writer and probably not writing much worth stealing. But I think that kind of belief that you can write to that level is what keeps a writer from giving up.

The way I've come to believe is this: I'm a writer. If I'm a good writer, people will want to read my stuff, thus bringing me income. I don't want someone to profit from my hard work, but theft of my work is also an affirmation of my writing abilities. Because I'm careful, I can prove that it IS my writing should someone take it. Because I'm a writer, I can always write more ... which isn't necessarily true of the person who is a thief.
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Old 08-09-2009, 04:13 PM   #40  
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thanks kaplods.

I just don't see that the Meyer situation is so similar to the other book that they would be confused with one another. i want to see the Oprah situation though.
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Old 08-11-2009, 02:37 PM   #41  
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Yup so it was dismissed. Apparently an Oprah spokesperson said that they weren't even served, but that a judge had dismissed it. So now we just have to see what happens with the Stephenie Meyer deal.

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Old 08-11-2009, 04:14 PM   #42  
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I also can't wait to see how this plays out in the courts.
I really doubt that he is going to win that much money.
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Old 08-11-2009, 05:33 PM   #43  
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thanks kaplods.

I just don't see that the Meyer situation is so similar to the other book that they would be confused with one another. i want to see the Oprah situation though.
But being confused with one another has nothing to do with plagiarism law. So often, I've read a book and thought the plot was great, but I would have written it differently (and in my mind, better), but I can't do that - because it's plagiarism. It doesn't matter if I rewrite a better book, and rewrite every scene and include different scenes - if there is enough similarity, it's still plagiarism.

As for the link that puts the scenes side by side where the alleged plagiarism takes place, I do think that there were enough similarities to warrant a second look, but if there aren't a lot more similarities than were posted (if that's all there is), I agree it's unlikely that the suite will be successful. However, if what was in the link was just a "sampling" of the similarities, and there are indeed many more, then that would make the plagiarism case much stronger.

I have to admit that the controversy does inspire an impulse to seek out both books, and read them to see what I think. As a result, I think both authors are likely to see an increase in sales as a result - I know the suing author's book is out of print, but the controversy could pique the interest of the publisher (or a different publisher) to reprint the book.
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Old 08-11-2009, 09:25 PM   #44  
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I also can't wait to see how this plays out in the courts.
I really doubt that he is going to win that much money.

Did you see above? A judge dismissed it today.

http://www.thresq.com/2009/08/oprah-...suit-poet.html

Apparently the guy never registered the copyright on his poems, thus his suit which was copyright infringement, was invalid. It was "lack of subject matter jurisdiction."
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Old 08-11-2009, 09:30 PM   #45  
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@kaplods: As far as I know, that's it in terms of what the Nocturne author is complaining about.
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