The distinction between plagiarism and copyright infringement
MICHAEL LANDAU discussed some of the issues in DASTAR V. TWENTIETH CENTURY FOX: THE NEED FOR STRONGER PROTECTION OF ATTRIBUTION RIGHTS IN THE UNITED STATES, 61 N.Y.U. Ann. Surv. Am. L. 273 (2005):
[Of the distinction between copyright and plagiarism]
Although some have used plagiarism and copyright infringement
interchangeably, plagiarism and copyright infringement are not the same
thing. While one who commits copyright infringement, (e.g., by reproducing and
distributing another's work without authorization), may also be
committing plagiarism by not giving attribution to the original author, there are
numerous situations - such as "fair use" and the use of public domain materials
- in which the unauthorized use of a work may not rise to the level of
copyright infringement, but certainly constitutes plagiarism.
Plagiarism is presenting another's ideas or written material without
giving attribution to the original author, or worse, giving the distinct
impression that the unattributed material is the original work of the
plagiarizer. There are numerous definitions of plagiarism.
[C]opyright protection has nothing at all to do with
attribution or credit. It provides only the rights of reproduction, distribution,
display, performance and others set forth under section 106.
[Of the impact of Dastar]
Because the right of attribution under copyright law applies only to a very
limited category of works, the Supreme Court in Dastar effectively ended most
causes of action for false or misleading attribution of artistic works.
This will encourage plagiarism and misattribution, especially when there is
so much material available that is so easy to reproduce and distribute.
The Dastar opinion's effect on the real world will be great and
wide-reaching, possibly broader than the Court intended at the time that it decided
the case. The question presented for review, however, was quite broad and so were
many of the statements in the opinion. As a result, the decision applies to
both public domain works and copyrighted works. In addition, state statutory and
common law causes of action for "unfair competition," "false designation of
origin," and "unfair trade practices" will probably also be preempted, closing even
those avenues for recovery for misattribution. As a result, outside of
institutions or professions with their own codes of conduct or internal sets of rules
that severely punish plagiarism, we can expect plagiarism and artistic
misattribution to dramatically increase.
Some other IPBiz posts on plagiarism:
IPBiz has previously discussed the distinction between plagiarism and copyright infringement.
The case is Twentieth Century Fox Film Corp. v. Dastar Corp., 539 U.S. 23 (2003).