Fanfic, derivative writing, plagiarism, copyright infringement
Somewhere, someone wrote these words before. Somewhere someone had these thoughts before.
And not just once.
Look, ALL writing is derivative. Even the most breath-takingly-original-to-you piece of pure unique-horn, is… derived. In the beginning was the Word. But the bloke who wrote as near an approximation of what it was as he could manage, using terms and words he had derived from others. They were not created de novo, but derived. Og’s three grunts back in the cave in Africa may be original but that’s about where it stops.
Now, given that there are a finite number of words, and a finite number of viable combinations, pretty well most phrases have also been used, and probably written. There are a lot of people out there. That infinite number of monkeys would in an infinite time have produced the complete works of Shakespeare. I used this e.g. with intent. It is possible that Emile Borel was the first used this metaphor in 1913. It is however possible it came from earlier than that. The origins of the idea… Borges raced it back to Aristotle and Cicero… want a bet they didn’t derive it from someone else? The idea and the metaphor are now such common usage that it is likely that any writer could have come across it – without attribution, in dozens of places.
When you add in the limitations of language, grammar, and the shared background and psychology and logic of humans, the probabilities of the patterns that make phrases are not statistically independent. You need a lot less monkeys and a lot less infinity. Of course the longer that identical piece is… the less likely it is to be identical, or even close.
This is called math. Like logic it is dangerous and can bite you on the leg. Like a crocodile it can pull you under to eat you later… or so many people seem to believe.
Personally, I think they have it backwards.
And this idea too is not original. I’m not aware of having it expressed to me. But I am sure the idea that math could eat you first and pull you under later is not new. Maybe not right either, but, well, we’re fiction writers. Much of what we write is bull.
And derived. And ideas that have been used before. Plots, plot devices, action scenes. But unless you’re actively engaged in plagiarism, that is not substantive. Odds are – because everything is derivative, whether from having read the works or not – derivative from a mélange of sources – because most of us are actually trying to be original. And oddly that mélange IS original although the reader might recognize the sources of several of the ideas. Mocha Java is not Mocha or Java. Bordeaux blend is not Cabernet Sauvignon, Cabernet Franc, Merlot or even the possible bits of Malbec or whatever. They are themselves, different and possibly greater than any of the original components. Yes, you may get such an element from the Merlot, and recognize such an element from the Cab Franc. The more amateur the winemaker the more likely you are to get one varietal dominant, or to have them distinct, rather than forming that new whole.
The same holds true for writers. We had a Jackass comment made about plagiarism on Cedar’s post. It’s a nasty accusation. It’s also plainly ridiculous.
Seriously, in fiction willful plagiarism is not hard to see. It’s not a phrase. It’s not a plot twist. That might be… or not.
It’s a substantive, little changed use of someone’s work. And not in general terms either. If it is every author who has been said to be like so-and-so would fall foul of this. Every author who pitched his work to an editor in terms of other books (‘It is like Asimov with a touch of See Spot Run. With fruit’) would be a plagiarist. Even once an author starts to inexpertly blend bits… It would have to a lot of bits, and substantively not a new blend for this accusation to be fair.
Of course there are also many areas where even extensive use is considered acceptable. Fanfic and satire being two: We’re not accusing the author of BORED OF THE RINGS of plagiarism despite the fact that it plainly has an origin in someone else’s work. THE COLOR OF MAGIC – Sir Terry Prachett’s first discworld book is a)Fanfic. b) a satirical take on the same, with recognizable takes on Lieber’s SWORDS OF LANKMAHR and various other fantasy books. The fascinating thing about thismixture between parody and pastiche is that it rapidly evolved to being Pratchett’s voice and a thing in itself, which has many imitators (with pretty little success, in my opinion.
Now, as much as we may frown on plagiarism – it is, in fiction anyway, unless it falls into infringing copyright, not illegal. I may feel the author ‘cheated’. Used John Doe’s ideas. Even similar phrases. There is not a lot I – or John Doe — can do about it. Badmouth the author, perhaps. If their publisher feels they have overstepped the line (and it has to be a fairly substantive line, or publisher could end being sued, and lose) and they specified something like ‘original’ they could withdraw, or possibly recover costs. But… well it’s a bear trap. Firstly they’d have to display that was really plagiarism – quite a high bar. And secondly, like the publisher who turned down the copy of their own longest selling bestseller, you’re going to look like an ass for not spotting it.
Ideas are not copyright. Only the original, unique expression of the idea is. And even that is conditional, and quite closely defined as pretty well precisely the same over a substantive piece of text. (So: for example ‘She said: “later darling.” – even if you precisely my same words describing precisely the same idea, it will fail. It’s hardly original, the expression of the idea hardly unique.) If: as in the monkey example above the unique expression has become unchallenged common usage… well, good luck. That’s neither plagiarism nor likely to get anywhere as copyright infringement. If you decide to sue someone for use the same phrase as Shakespeare or Gilbert and Sullivan, to express an idea – chances are that you will end up being hoist by your own petard.