Copyright Infringement vs Plagiarism

I think it’s in high school when most of us had the concept of plagiarism shoved down our throat. It was all part of the lessons about citations and the MLA format or the Chicago Style Manual or whatever it was your teacher used to put the fear of getting an F in you. And, of course, this was likely before this whole internet thing controlled our communication. Still, too often, there is confusion about infringement of copyright and plagiarism.

What is Plagiarism?

Plagiarism is, simply, taking someone else’s work and passing it off as your own. Happens all the time. Happens to school kids. Happens in the work place. Happens on the internet. Every day. Everywhere. Sometimes people lose their job because they’ve plagiarized another person’s work. Students have had their college admissions revoked due to plagiarism charges.

Plagiarism is not illegal in the United States. Despite the sometimes very harsh consequences, plagiarism is a moral issue not a legal one. Given the spectrum of morality practiced by people around the globe, plagiarism can range from a small nuisance to a serious offense with significant consequences.

While many companies don’t have a policy regarding plagiarism, certain industries follow very strict ethical codes. As consumers we also expect a certain level of professionalism from those in fields where information and words are the equivalent of gold. And while passing off someone else’s work may not seem like a big deal compared to things like insider trading, corporate espionage, or trade secret theft, most educated people do consider plagiarism to be important.

What is copyright infringement?

Copyright infringement can only happen if the underlying work is copyrighted. While copyright is automatic, it doesn’t apply to every single thing we create. So, yes, there are a host of super cool things that you can not copyright. Things like lists, useful items, choreographic works (unless they have been recorded), fashion, ideas, and, for the most part, works created by the US Government.

Copyright infringement is a legal framework for pursuing damages against someone who wrongfully violates the exclusive rights you have with your copyright. That’s kind of the lawyer-ish way to say, if someone uses your copyrighted work without permission or under a covered exception such as Fair Use, you likely have a case and can sue them (or if it’s online also file a DMCA Takedown Notice and get their posting taken down).

Like copyright, copyright infringement is automatic. If your copyrighted work is used without your permission in a way that violates your exclusive rights, the person or organization using it is engaging in copyright infringement. The key is that (1) you must have a copyrighted work, (2) it is used without your permission or under a valid exception, and (3) in a manner for which you have exclusive rights.

Let’s break this down:

1. The work must be subject to copyright. Remember, there are a number of things that can not be copyrighted.

2. You must be the copyright holder. Your copyrighted work does not have to be registered, but that helps if you decide to seek damages. The copyright can’t be expired (which is not usually important with regard to current works but keep the year 1978 in mind because that’s a key date of delineation in Copyright).

3. Your copyrighted work must be used without your permission or authorization and not covered by an exception. This means you did not provide permission or if you had but have since legally withdrawn permission, there may be an infringement. Keep in mind that if you had put your work out under a Creative Commons license those are non-revokable. (Did you know that about Creative Commons licenses?)

4. The allegedly infringing use is one that is yours exclusively under the US Copyright Act. Other people can tell you they’ve seen your work online, but they can’t use the law to enforce your rights. The exclusive rights are rather broad but you’d want to ensure the allegedly infringing use falls into one of those categories.

If all four of these things are present, you likely have a copyright infringement and have a host of legal remedies available.

What is the difference between Copyright Infringement and Plagiarism?

The most significant difference is that you can sue or employ the remedies under the Digital Millennium Copyright Act (DMCA) for copyright infringement but you can’t for plagiarism. Plagiarism may overlap copyright infringement, but that’s not always the case.

Other differences include:

Copyright infringement doesn’t consider whether you were given credit. Copyright infringement can still occur even if the source, author, or copyright-holder is cited. Plagiarism only occurs if someone is trying to pass off your work as their own.

Plagiarism is a violation of moral, ethical, or organization norms not laws.

Plagiarism can occur with things not subject to copyright or when copyright infringement is excused as Fair Use. Ideas can be plagiarized, as can useful articles, neither of which are subject to copyright.

Copyright infringement only happens with regard to the copyright holder, which may not be the author or actual creator. Plagiarism is an offense against the author or creator, regardless of who may have legal rights to their work.

Plagiarism can occur even if there is permission from the copyright-holder to use the work. Permission to use the work doesn’t mean you get to take credit and pass it off as your own. Even if the copyright-holder didn’t specify anything about giving credit, you have to provide some type of attribution to avoid a plagiarism charge.

For copyright infringement that takes place online, you may be able to file a DMCA Takedown Notice. In cases of plagiarism only, the remedies available are much more limited.

Bottom Line

Both copyright infringement and plagiarism are bad. Both often play out in the court of public opinion, which likely has a greater cost than any legal judgement. Some may argue that the consequences of being found to have plagiarized a work are more harsh than damages a court doles out. Interestingly, a finding of plagiarism may stay with someone much longer than being held accountable for copyright infringement.

As a society, the value we have for makers and creators is not always consistent with actions. With the advent of social media, it’s easier than ever to be held accountable for claiming to have created something when, in fact, you didn’t. Right or wrong, we really need to move away from the premise that it’s easier to ask for forgiveness and, instead, support the value of creators and their work and ask permission and give credit.