Patent Law

Allison Routman, Frank Zappa, and plagiarism

By Lawrence B. Ebert, Esq.

The distinction between copyright and plagiarism implied in comment #4 is correct. One can plagiarize Shakespeare but can't infringe his (non-existent) copyright. One can even falsely claim authorship of public domain works (without violating federal law), as the Supreme Court held in Dastar v. Twentieth Century Fox Film Corp. On plagiarism, wikipedia itself notes: It is not plagiarism to use well-known 'common sense' facts (e.g.: "gravity causes things to fall downwards" or "World War II ended in 1945") without acknowledging a source. For a more nuanced discussion of creative issues, see the Ninth Circuit's discussion of Frank Zappa in the Narell case, 872 F.2d 907.

Of the Dastar case, M. Sunder wrote:

In 1948, Fox acquired the copyright to produce a television series, called "Crusades in Europe," based on the book by then-General Dwight D. Eisenhower describing the Allied campaigns of World War II. In 1977, Fox failed to renew its copyright in the series. (The obligation to renew a copyright was eliminated in 1976, but it still applied for the earlier-created work.) Thus, the series fell into the public domain.

(...)

Unable to bring a copyright claim, Fox sued Dastar employing other claims, including one for trademark infringement. Specifically, Fox argued that selling the videos without attribution constitutes "reverse passing off" under the Lanham Act, the federal statute that protects trademarks.

(...)

Copyright law protects the originality and creativity of authors, but only for a limited time. After a copyright expires, Scalia explained, "the public may use the invention or work at will and without attribution." (Emphasis added.) In contrast, a trademark protects consumers against confusion when they purchase products.

[See also 2005 IPBiz post on Dastar.]

Of plagiarism, Allison Routman copied fragments of three sentences from wikipedia and was expelled from "Semester at Sea." Decades earlier, Joe Biden copied pages from a law review article, got an F, but was not expelled from Syracuse Law. Shortly after Allison was expelled, Joe Biden was nominated to be Vice-President.

***Elsewhere

Joe Nocera of the NYT reported:

In a lengthy report issued in March by a team of Lehman analysts on the subject of virtualization technology (don?t ask), language and complicated graphics were lifted directly from several reports by Toni Sacconaghi of Sanford Bernstein.

You almost have to laugh. Mr. Sacconaghi is a highly rated analyst, according to Institutional Investor (the bible of analyst ratings), and his work is closely followed by clients. There was basically no way this was going to go undiscovered. Sure enough, the theft was brought to Bernstein?s attention, which immediately complained to Lehman, demanding a public apology. Lehman declined. But after conducting an investigation, it sent out one of the more groveling client letters I?ve ever read, in which it admitted the plagiarism, withdrew the research report from its Web site, and apologized both to Bernstein and its clients. And according to people involved, Lehman also fired Gordon Johnson, the analyst the firm concluded had stolen Mr. Sacconaghi?s work. His boss, however, Tim Luke, who directed the team of analysts that wrote the report ? and who presumably had final responsibility for its contents ? still has a job.

Full post as published by IPBiz on August 29, 2008 (boomark / email).