When is plagiarism not plagiarism?

[Tower75]

Hi, all.

I was a'pondering something at the weekend and I thought I'd put it to the Forum.

When is plagiarism not plagiarism?

Plagiarism might not even be the right word, but let me try and explain.

If I wrote a story about a post-apocalyptic city that was tearing itself apart and the only thing keeping it together was the police; whom were judge, jury and executioner all rolled into one I would be slated as a blatant plagiarist as I have just up and stolen the premise of Judge Dredd.

However, if I wrote a fantasy story about human cities and empires, dwarfs living underground and mining, wood elves who lived in the forests and who were archers, I could probably throw in orcs and a wizard too. Hell, I could even throw in a magical ring. No one would bat an eyelid. Even though this is the building blocks of The Lord of the Rings it has become such a accepted staple of the genre that no one cares.

If I wrote a story about a billionaire who saw his parents die at the age of 9 and then later grows up to rid his city of crime by donning the mantle of the bat, or owl, or whatever people wouldn't even give me the time of day as I've just stolen Batman.

However, if I wrote a story about a galactic empire and a group of separatist planets and some rebels. I include some nifty space battles and I could probably even sneak in telekinesis and telepathy in the main character and no one would care -- it's just another scifi/space opera story, even though this is basically Star Wars.

So, what makes my non-LotRs story more acceptable than say my non-Judge Dredd story? And what makes my-non Star Wars story okay -- just another scifi story but my non-Batman story is just a blatant theft of ideas?

 

[Jackie Bee]

Interesting. I think its about you ability to recombine the existing elements to produce something new. In your Batman example the main storyline didn't change much, so it would be stealing a whole story. While elves and dwarfs etc are just classic elements of a fantasy plot and if they do something that didn't happen in LOTR , it will work...So I guess the difference is - taking a plot is stealing, taking plot elements is not (they don't belong to anyone anyway... nobody owes elves ...

 

[KyleAW]

I think there isn't plagiary here. BUT, readers may draw the comparison themselves and say 'oh, this is just Judge Dredd.'

Make it your own, don't use terms like 'judge, jury and executioner (which I believe are direct quotes from the Judge ) and it is fine!

 

[Toby Frost]

"But be sure to always call it... 'research'."

Tom Lehrer.

 

[wam]

Plagiarism isn't what it was. There's an argument to say that all of the above are guilty of plagiarism, lifting scenes or plot lines from previously published (filmed) works. I read LOTR too young to spot most of the lifts from other works. The only one that stuck long enough was the MacBeth prophecy and death scene. When Star Wars came out there's a story that another studio wanted to sue them over stealing material from one of their old serials (Flash Gordon/Buck Rogers) but that disappeared when it was pointed out that the same plotlines etc. occurred in an even older serial owned by the studio that made SW. Judge Dredd's original Six-Gun was a straight lift from Logan's Run but since the whole thing was taken from so many old westerns where the revolver was a central icon no-one really bothered. The privileged hero goes back a lot further than Batman and there are so many variants on the costumed hero that you'd be pressed to figure out which one the plagiarism was ripping off.
The real problem is that, unless you do something really different, a lot of the material has been over-used and the market isn't really there anymore.

 

[Tower75]

I think there isn't plagiary here. BUT, readers may draw the comparison themselves and say 'oh, this is just Judge Dredd.'

Make it your own, don't use terms like 'judge, jury and executioner (which I believe are direct quotes from the Judge ) and it is fine!

Oh, that I get, yes. People always draw their own caparisons, but for example: I put a yellow haired elf archer in my book call Not-Legolas; no one would care, no one would bat an eyelid. Arrow shooting, long haired elves are a staple in Fantasy now.

If I wrote a story about a Judge in Totally Not-Mega City 1, who totally isn't Judge Dredd, why would that be frowned upon but Not-Legolas would be just accepted as a Fantasy staple?

 

[Nick B]

It isn't all about originality though, I think we all agree that coming up with a totally original premise is insanely difficult. So, imagine ,

A century after an apocalyptic war (yeah, overdone), society has rebuilt itself but is by necessity a dictatorship (yup, been there). Lawelessnes is on the increase (of course) and the masses who live outside the massive walled (of course) cities are becoming restless and a horde rampages across the (mad max) wasteland towards Capitol (magacity) One.
Only maverik Justicar (Judge) Stone and his (magnificent 7) companions have the guts to go out and face the oncoming tide of barbaric (of course) people.

Totaly unoriginal, but to be frank, if it was written well and the characters resonated with me, I'd read it.

 

[KyleAW]

@Quellist, I think you have nailed it for me. I personally care more for how engaging the writing is. Not how clever and original the story is .

 

[Brian G Turner]

I agree with Jackie Bee - you're comparing elements to story-arcs.

Tolkien didn't invent dwarfs, elves, or goblins - they already existed as folkloric elements. Putting them into a story doesn't plagiarise LOTR, unless of course you include some magic evil jewellery that needs lobbing into a volcano. Then it might be considered to be particularly derivative.

 

[Vladd67]

I agree with Jackie Bee - you're comparing elements to story-arcs.

Tolkien didn't invent dwarfs, elves, or goblins - they already existed as folkloric elements. Putting them into a story doesn't plagiarise LOTR, unless of course you include some magic evil jewellery that needs lobbing into a volcano. Then it might be considered to be particularly derivative.

Magic evil jewellery or perhaps a talisman shaped like a sword

 

[Kissmequick]

It's not plagiarism, unless you reuse the words. There is no copyright on broad ideas, only on their specifics and/or execution*.

I can write about a boy who goes to wizard school and has to fight the big bad that killed his parents. It would be hugely derivative but not plagiarism. However, if I called the boy Harry Potter that would be trademark infringement (as HP is a trademark nowadays, most characters are not but still it's best not to name a character the same as another in a closely related work, even if only for saving confusion). If I started the book with "Mr and Mrs Dursley of number 4, Privet Drive, were proud to say they were perfectly normal, thank you very much" that is plagiarism.

UK Copyright law says:

Interpretation is related to the independent creation rather than the idea behind the creation. For example, your idea for a book would not itself be protected, but the actual content of a book you write would be. In other words, someone else is still entitled to write their own book around the same idea, provided they do not directly copy or adapt yours to do so.

TL;DR Plagiarism is only when you use someone else's words. Otherwise West Side Story would be in breach....

*If something is too close to the original you'll have a problem. But "Boy goes to wizard school" is so general you'd not have a case. Especially as I can think of about four series with that premise. It's only once you get to specifics it gets more murky. But in general you can't copyright ideas, only your execution of them.

ETA: IIRC You would run into problems using orcs as they are protected (copyright? Trademark? Can't recall. You'd need permission to use the word as Tolkien invented it. Same goes for hobbits -- hence Halflings in D&D)I could be mistaken there...it's definitely the case with hobbits, I'm pretty sure with orcs too.... Anyway -- because those are specific to his work, you'd need to be careful. Elves are not, so are free game

 

[Nick B]

I believe Orcs are actually from German mythology? And are used all over the place anyway.

 

[Kissmequick]

Possibly but not, I think, using the name "orc", that was Tolkien's name for goblins, ETA no wait, it was Anglo Saxon for ogre and he "borrowed" it (however, I think I'm right in saying it's trademarked so you'd need permission to use it. I know someone who testified in a legal thingy on it as it is a term now synonymous with LOTR. YOu might get around it if your orcs are sufficiently different)

Ofc the thing is orcs are specific, not general. Hence tread careful.

 

[Vladd67]

I believe this is the reason Gamesworkshop have changed the name of the races in Warhammer so they can copyright them.

 

[TheDustyZebra]

However, if I wrote a story about a galactic empire and a group of separatist planets and some rebels. I include some nifty space battles and I could probably even sneak in telekinesis and telepathy in the main character and no one would care -- it's just another scifi/space opera story, even though this is basically Star Wars.

But it's not, because @Jo Zebedee wrote this, and it wasn't Star Wars at all.

 

[Fishbowl Helmet]

As mentioned, none of those are plagiarism or copyright violation.

The closer your work resembles another, the closer you get to violating copyright. There is not exact measure, it's usually up to the judge, magistrate, or jury if it goes to court. But basically, you'll be fine if you don't copy the setting, the plot, and the names from someone else. Look at 50 Shades of Grey and Twilight. EL James wrote 50 Shades as a Twilight fan fiction. It became so popular that she changed the characters' names and a few details about their personalities, changed the location to Seattle, and dropped the supernatural elements for lots of sex.

If you write a book with elves, dwarves, humans, and halflings going on a quest to topple the evil king, you're not going to be sued for copyright violation and no one can claim you're a plagiarist. They can an will cite that you're rehashing the same tropes and plot structure as Lord of the Rings and likely make fun of you for it. The more elements that your work and the other have in common, the more trouble you're going to bring on yourself. If you have all the above plus a wizard, you're likely fine. If the wizard dies and comes back to life... still fine. If that wizard is named Gandalf... you're violating copyright.

So too with the Judge Dredd example. You can have a post-apocalyptic society that's completely out-of-control in regards to crime and have the police be hyper-violent and reactive to crime all you want. Once you start calling your isolated city Mega-City One and have your square-jawed super-cop clones be called 'Judges' you're treading perilously close to being sued. But again, the more elements you use, the more likely you are to get labels such as 'hack' applied to your writing and the more derision you will receive.

Each element is a basic building block of story, commonly called a trope. All stories use them, there are a near-infinite variety of them, some are lost to time, more are being codified every day, and there is an unlimited number of ways they can be put together. The more of those same blocks you use as another story does, and the closer you are to arranging those blocks in the same way as that other story does, the more likely you are to get sued. A rich kid whose parents are murdered. Fine. A rich kid whose parents are murdered and goes on to become a superhero... fine. Probably. That superhero's theme is a nocturnal flying creature and he uses and endless supply of neat gadgets to fight crime? You're going to want a really good lawyer/barrister.

As a side note. You ever notice how there are so many superhero characters that are clear rip-offs of other, more famous characters? Yeah, that's because they rearrange the tropes just enough to avoid being sued. That's the Captain Ersatz effect.

But it's not plagiarism till you directly copy chunks of text from another writer and try to pass it off as your own.

 

[vgunn]

Orc is definitely not trademarked and can be found in a ton of fantasy novels (as well as games). Ork is trademarked for Warhammer 40K.

 

[Tower75]

Orc is definitely not trademarked and can be found in a ton of fantasy novels (as well as games). Ork is trademarked for Warhammer 40K.

Actually, that's a good point. From memory I know of at least two novels which are on my shelf which refer to "Orc" and "Orcs", so that can't be trademarked.

I think Games Workshop also tried to trademark "Space Marine", though I'm not sure if they managed it. I'm not really sure how they'd get away with it to be honest.

 

[Ray McCarthy]

Sometimes, esp. with USPTO stuff gets registered that's not valid (Patents, Registered Designs = USA Design Patents, Trademarks). Despite what USA & Google thinks, Copyright is automatic.
BUT all these have to be enforced by Civil court action. I'm sure many of Marvel's alleged 7000 super hero Trademarks and even "Superhero"(T.M.) are invalid. But you might need a deeper pocket than Disney to prove it.
Coca-Cola is distinct as is the distinctive fluted bottle. A rounded corner flat phone "registered design" is invalid. Coke can be used for anything not a Cola based drink. Cola can be used by anyone. If a trademark enters common use for any product, then it can't any longer be easily protected (Possibly Hoover, Kleenex, Sellotape). Lidl unlike Marvel uses made up names.

 

[Judderman]

Article below from when GW tried to sue someone in the US for using the term Space Marine in a book. The article suggest they could have more success in Europe doing that. Though how did they register a trademark for a phrase that already existed.
http://www.bbc.com/news/technology-21380003

Musicians have even copyrighted phrases from songs, even though they don't seem unique. Taylor Swift has applied (I don't know if successful) trademark these "Party like it’s 1989”,• “This sick beat”,• “Cause we never go out of style”,• “Could show you incredible things”• “Nice to meet you, where you been?”.

Seems absurd to me.

As for Plagiarism, I presume writing "Mr. and Mrs. Dursley, of number four, Privet Drive, were proud to say that they were perfectly normal.... " and just changing their name and address would also be a culprit?