Monday, November 30, 2015

Rand Paul "plagiarism" issue recycled in "The Wilderness"

Many "high profile" accusations of plagiarism are politically motivated, and a recent post on Buzzfeed falls in this category.
Rand Paul’s Chief Strategist Was Writer Behind Senator’s Plagiarism.

One piece of text caught the eye of IPBiz:

“He [Rand Paul] thought the evidence of his supposed lapse in ethics was outrageously thin and nitpicky. He’d been recapping movie plots in these speeches, not reciting Tolstoy and calling the words his own. He felt certain that if he could just explain this in a neutral setting, his attackers’ petty animus and partisanship would be laid bare.”

This brings up the difference between plagiarism and violations of federal laws in copyright and trademark.

IPBiz has written about the Dastar case on several occasions. From IPBiz on November 28, 2005 (nearly exactly 10 years ago; "Remembering Dastar"):

Dastar suggests that material in the public domain may be copied without proper attribution and possibly with misattribution.

For the right to copy, without attribution, a previously copyrighted work, the Supreme Court cited to patent law: The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired]including the right to make it in precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938).

Of the plagiarism issue, the Supreme Court noted: Finally, reading § 43(a) of the Lanham Act as creating a cause of action for, in effect, plagiarism-the use of otherwise unprotected works and inventions without attribution-would be hard to reconcile with our previous decisions. For example, in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205 (2000), we considered whether product design trade dress can ever be inherently distinctive. WalMart produced "knockoffs" of children's clothes designed and manufactured by Samara Brothers, containing only "minor modifications" of the original designs. Id., at 208. We concluded that the designs could not be protected under § 43(a) without a showing that they had acquired "secondary meaning," id., at 214, so that they" 'identify the source of the product rather than the product itself,'" id., at 211 (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851, n. 11 (1982)). This carefully considered limitation would be entirely pointless if the "original" producer could turn around and pursue a reverse-passing-off claim under exactly the same provision of the Lanham Act.


See also: Allison Routman, Frank Zappa, and plagiarism

**As a footnote, plagiarism in speeches, in a context in which footnoting is difficult and not expected, is a tough sell.
The Biden/Kinnock plagiarism business overshadowed the reality that the facts themselves were incorrect. And is Abraham Lincoln a plagiarist because of the "House Divided" speech; one thinks not.


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