What Even Is “Plagiarism”?

Kevin M. Kruse

My first hands-on experience with plagiarism happened in 2004. I’d recently reviewed T.C. Boyle’s The Tortilla Curtain glowingly on Amazon. A complete stranger emailed, offering me $40 cash to write his five-paragraph essay on that novel. A quick-n-dirty Google search discovered that this writer was a Southern California honors student with multiple STEM awards. I emailed his high school, notifying them of this attempted academic dishonesty, and never heard back.

Last week, Princeton historian and minor Twitter celebrity Kevin M. Kruse was accused, with some credibility, of plagiarism. Several passages from Kruse’s 2000 doctoral dissertation too closely resemble books by Ronald H. Bayor and Thomas Sugrue. Kruse’s public positions are broadly Leftist; his accuser, Phillip W. Magness, has right-wing think-tank ties and frequently publishes in conservative magazines like National Review. The accusation appears in the right-Libertarian magazine Reason.

Not surprisingly, the cross-talk surrounding this accusation breaks along partisan lines. Left-liberal defenders claim the accusations are overinflated. Right-wing accusers claim this evidence not only undermines Kruse, but higher education overall. Both sides assign intent, not only to Kruse himself, but to the other side of the argument. Within minutes, every argument comes unmoored from Kruse’s work, and becomes about wider moral concerns in educated society.

Five years after being solicited to write somebody’s five-paragraph essay, I was working as a graduate teaching assistant. Two students turned in “annotated bibliography” assignments that were virtually identical. Google revealed both students copied their one-page assignments, with minor amendments, directly from the New York Times. Admittedly, I didn’t handle it well; I commenced a high-handed rant about the morality of originality, and the evils of plagiarism.

T.C. Boyle

One thing appears clear: Kruse definitely plagiarized. The sentences from Bayor and Sugrue which Magness finds in Kruse’s dissertation are too numerous, too close together, and too verbatim to be coincidental. Kruse’s most prominent defender, L.D. Burnett, tries to construct a viewpoint wherein Kruse’s copying might be merely coincidental. But actually placing Kruse’s words and his sources side-by-side, as Magness does, makes this defense look anemic.

Understand, Magness never challenges Kruse’s conclusions, only his prose. And the sentences Kruse plagiarized, if removed from his books, wouldn’t change his overall message. Magness only challenges Kruse’s academic rigor, a standard Kruse himself has used to undermine others. He catches Kruse committing the kind of errors he regularly denounces in others, knowing Kruse’s Left-liberal audience prizes consistency as part of their definition of fairness.

The more I encountered plagiarism in student work, the more forgiving I became. When students filched from Wikipedia, Reddit, and other ubiquitous sources, I realized they weren’t malicious. They were busy. I expected them to reach unique conclusions, and arrange entirely new sentences, around topics they knew little about, and cared even less. Plagiarism became a classic teachable moment, not a crime; I started clamping down only on habitual offenders.

Watching the Kruse controversy unfold, I’m reminded of Jonah Lehrer's public collapse. Rather than plagiarism, Lehrer fabricated evidence. Like Kruse, he told an eager audience what it already wanted to know, and the publishing world rewarded him richly. Like Kruse, Lehrer’s fabrications didn’t contradict the evidence, and Lehrer’s scholarship largely holds up. But, like Kruse, Lehrer’s disregard for industry standards sidelined his career at the peak of his popularity.

Jonah Lehrer

Since leaving academia and becoming a professional technical writer, I’ve spent countless hours hunched over my computer, repurposing my own and others’ words for new uses. Complete originality is important for authors and academics, who need to own their writings to get paid. But other kinds of writers—technical writers like me, ad copywriters, attorneys drafting legal briefs—regularly recycle words and sentences, in ways I once reprimanded students for.

I gave Kruse’s 2015 book One Nation Under God a glowing review, and I wasn’t alone. But like my students, Kruse is busy. As Jerry Z. Muller writes, lucrative rankings from US News and Princeton Review tally faculty members’ publications as part of their algorithms. Thus scholars like Kruse must publish prolifically, not only to receive tenure, but to keep top-tier students coming through the doors. Quantity beats quality.

This isn’t to forgive Kruse. He got caught committing the very transgression he’s spent two decades excoriating conservatives for, as Magness writes. He’ll need to spend time outside the limelight, and muster some persuasive apology, at minimum. (Kruse’s Twitter feed has been silent since Magness’s story dropped.) But maybe it’s time for academia to find some yardstick other than originality. In today’s media-saturated world, original words are hard to find.

The Passion, the Pride, and the Copyright Law

Promo still from Disney's The Lion, the Witch, and the Wardrobe

I never heard of Francis Spufford, the British literary critic turned novelist, until this week, when he garnered stray headlines over a book which he’ll almost certainly never publish. Spufford wrote a book intended to close a gap I didn’t realize existed in CS Lewis’s Chronicles of Narnia, a piece which the few who have ever read it describe as unacknowledged genius. But he wrote this book without first getting clearance from the Lewis estate.

My opinions on today’s overly long copyright protections are already well-documented. In signatory countries to the Berne Convention (which is most of the world), most artistic works are protected for a minimum of fifty years after the creators’ death. But that’s a minimum; America and Britain offer additional protections, keeping works secured for seventy years. So Narnia won’t enter public domain, or support unauthorized derivative works, in the English-speaking world’s two largest markets until 2034.

Nearly seventy years after the first volume dropped, Narnia remains among those rare few books that actually continues making money for its author’s heirs. It remains a steady seller at Christian and mainstream bookstores, and as been adapted for mass media twice, by the BBC and Disney. (A Netflix adaptation has been reported.) Most authors make all royalties they’ll ever make on their books in the first year, but Narnia remains lucrative three generations later.

Meanwhile Professor Spufford, like most authors, needs a day job to subsidize his writing, in his case as a writing instructor. His works are well-regarded, by people whose job it is to regard such things, but not widely read. Not only will his work probably not remain in circulation in seventy years, I’ve had some difficulty tracking it down today; if I wanted his books, I’d need to pay and have them imported from Britain.

Which is where this becomes interesting.

Arguably, Spufford has committed a PR coup. I’d never heard of Professor Spufford before this story erupted this week, but investigating him to write this essay, I discovered that his criticism dovetails with a nonfiction book I’m writing; I have a title on order. Congrats, Professor, you made a sale. Even without publishing the controversial novel, Spufford has ridden Lewis’ coattails to relevance, selling some copy along the way.

Francis Spufford

Spufford claims to have written a novel that reconciles the gap between The Magician’s Nephew, Narnia’s creation myth, and The Lion, the Witch, and the Wardrobe, the first-published Narnia book. I hadn’t realized there were any particular inconsistencies; like Brian Herbert and Kevin J. Anderson’s Dune continuation novels (based on Frank Herbert’s notes), nobody knew there was a missing middle until somebody filled it. And the few critics who’ve seen it, apparently praise Spufford’s writing.

This isn’t without precedent. Novelist Gregory Maguire made his name rewriting popular children’s fantasies from the antagonists’ viewpoint. His breakout novel, Wicked, forced audiences to reëvaluate their preconceptions about The Wizard of Oz. But Maguire waited until the source material went out of copyright. Admittedly this was easier, before the Copyright Extension Act of 1996 extended protections until almost Doomsday.

And, just a brief reminder, that copyright extension was subsidized by lobbyists paid by Disney.

This bears mentioning because Disney made its reputation adapting works from the public domain. Their classic The Jungle Book (1967) hit theatres only one year after Rudyard Kipling’s copyright extension ended, which, given the long lead time in movie production, means the work began under technically unlawful terms. Nevertheless, both Disney and Maguire established their names repurposing society’s common cultural pool, and not by taking property that technically belongs to somebody else. Or their estate.

I’m not sure Spufford is wrong, though. Narnia has become so widespread in popular culture that it’s unmoored itself from its author. Considering just one example, American author Lev Grossman’s The Magicians clearly takes Narnia as its inspiration, changing proper nouns just enough to create plausible deniability. The result masterfully addresses Lewis’ deep moral omissions. Grossman, like Spufford, engages with Narnia’s widespread cultural influence. He just cooperates with established intellectual property law to do so.

In short, I find myself torn. Narnia has become widespread cultural mythology, a shared experience many readers recall fondly from childhood. But it also remains somebody’s livelihood, and Spufford’s decision to not collaborate with the Lewis estate bespeaks a certain intellectual arrogance. Which, as I struggle to establish my writing career, I almost admire, since modesty doesn’t launch an arts career. Maybe more writers should kick the beehive. Maybe Spufford is the hero we need.

Is Led Zeppelin Threatening Creativity?

Randy California (top left) and Spirit

The concept of ownership in America has officially become untenable. The case of Michael Skidmore v. Led Zeppelin, alleging the famous British blues-rock band plagiarized the iconic opening measures of “Stairway to Heaven,” demonstrates how narrowly restrictive intellectual property law has become. It transforms one of rock music’s most famous compositions into a ripoff of a frankly boring and forgettable deep-album cut. But it does much worse.

Skidmore, representing the estate of prog-rock semi-luminary Randy California, purports that Jimmy Page, who almost certainly knew California’s work—Zeppelin opened for California’s band Spirit on a 1968 US tour—recycled Spirit’s instrumental “Taurus” into the opening bars of “Stairway.” Skidmore calls “Taurus” an “ethereal yet classical guitar composition.” Most music lovers who’ve heard the actual track would probably call it “boring.”

The case, filed nearly two years ago but approaching trial now, has merit. Skidmore makes a persuasive case that Page knew Spirit’s music. Anyone hearing “Taurus” without being warned might believe, for eight or ten seconds, that they were hearing “Stairway to Heaven.” Skidmore’s thirty-five-page complaint certainly has a prima facie case. The question becomes, is that very brief similarity legally actionable? And if so, does it have wider implications?

The similarities, though brief, are undeniable. Music critic Alex Ross, who understands these things better than me, argues that the similarities are superficial. But to the untrained ear, the similarities are audible. The difference is that Spirit circles that one motif for two-and-a-half minutes, and simply peters out. Zeppelin, by contrast, uses that brief motif as foundation, launches from there, and never stops building. Zeppelin clearly composed the better song.

Jimmy Page (with guitar) and Robert Plant of Led Zeppelin

Intellectual property in music has become hot property lately. Classic twang-rocker Tom Petty now partly owns Sam Smith’s snoozy Top-40 hit “Stay With Me,” because it supposedly resembles Petty’s “Won’t Back Down.” Millions of dollars ride on the case of whether Robin Thicke’s track “Blurred Lines” ripped off Marvin Gaye, or merely composed an homage. In both cases, similarities to the original tracks are less distinct than the Zeppelin case.

Both cases seem really weird to interested amateurs. “Stay With Me” has a similar backbeat to “Won’t Back Down,” but the two songs resemble one another less than Red Hot Chili Peppers’ “Dani California” resembles Petty’s “Mary Jane’s Last Dance”—a comparison Petty has reputedly laughed off. The Peppers even unabashedly pinched Hendrix’s “Purple Haze” chord progression for “Dani Califonia’s” final instrumental breakdown. But the Peppers aren’t in court.

And similar backbeat isn’t enough to base a plagiarism case. That isn’t me saying it; John Fogerty, in 1988, took his guitar into the witness box to prove similar backbeats don’t mean he plagiarized his composition “Run Through the Jungle,” which he doesn’t own, in writing “The Old Man Down the Road,” which he does. Courts sided with Fogerty. The Fogerty precedent should apply to Sam Smith, and musicians generally.

Basically, under current US copyright law and the Berne Convention, the similarity between “Taurus” and “Stairway” is too brief for sustainable legal action. But even worse, this case, even more than the “Stay With Me” case, has chilling implications for creativity. If even small, transitory similarities constitute theft, if pinching three bars from another composer equals plagiarism, most artists, not just musicians, are culpable for at least occasional theft.

John Fogerty, who was accused
of plagiarizing himself

Bob Dylan’s classic album Highway 61 Revisited includes long passages deliberately reminiscent of Allen Ginsberg. Dylan couldn’t claim ignorance; he’d appeared onscreen with the poet in his “Subterranean Homesick Blues” video. Andy Warhol regularly reproduced, not just mimicked, classic artists and graphic designers, some still living then. My first published poem, “I Do Not Love You,” was written in imitation of June Jordan—not advertised as such, but present nonetheless.

Clearly plagiarism does exist. Michael Bolton lightly tinkered with the Isley Brothers track “Love Is a Wonderful Thing,” slapped his own name on it, and made millions before getting caught. But even that brings issues: the Bolton case began within one year of the single’s release. Zeppelin is defending itself forty-five years after “Stairway’s” release, and nearly twenty years after Randy California’s death. The long delay seems specious at best.

If this case succeeds, it will have chilling effects on artistic creativity. If one composer can claim absolute ownership over three measures of music, ideas cannot flow. Artists depend on exchange to create new works; Randy California’s composition borrows liberally from Palestrina and Bach. Copyright law was written to protect intact or significantly-intact works, not fragments. Cases like this could literally kill art.


See Also: Copy This Copyright Rant