Plagiarism, Copyright & Defamation
This time on the Laws of Writing we’ll be looking at the actual laws that apply to written works—namely plagiarism, copyright and defamation—and how to tell if your work is at risk in any of these categories.
Disclaimer: This post is not intended nor should it be interpreted as legal advice. I am not a lawyer or a legal expert and I am therefore not qualified to act as legal counsel. My thoughts represent my role as an editor when approaching these industry-relevant topics.
In this post:
Intent
An editor’s role
Plagiarism
Copyright
Defamation
When something is flagged
Intent
Authors don’t typically intend to get into legal trouble, but that doesn’t mean an author won’t find it accidentally. Having an awareness of these concepts can help prevent issues or, at minimum, prepare you in the event that they do come up.
This possibility should not scare you away from writing. Authors must find balance between expressing themselves and respecting the people around them. Art is never free from risk—people may not like a certain piece, for instance—but it must be done in a way that is constructive, not destructive. Put another way, these laws are meant to protect against harm, whether harm was intended or not.
Ignorance is never an excuse to cause harm. Let’s say you make a mistake that hurts someone. You may not have intended those consequences, you may not have known they would happen, but that fact alone does not magically undo the harm that was done. That is why the law rarely, if ever, takes intent into account when reviewing these kinds of cases. When an issue like the ones we’ll look at here arises, only accountability matters.
So while we should always create with good intentions, one intention is all we really need: to keep our mind open. When we keep ourselves open to changing our minds with new information, we grow as people and as artists.
An editor’s role
An editor can be a great help with this aspect of the creative process, but as should be evident in the disclaimer of this post, the line between the role of an editor and that of a lawyer is essential for us to draw.
Editors are trained to spot and point out areas of concern in your manuscript. We’re not trying to be a pain, believe me. In fact, when we flag something of this nature, it’s done with the intent to prevent you and others from experiencing significant pain.
But an editor, even the ones employed in-house with publishers, can only do so much. As I said in my disclaimer, being an editor does not make me a legal expert. The law may be interesting to me personally, but I am not equipped the same way that a lawyer is. Even if you were to find an editor who happens to also be a lawyer by trade, I would still recommend separating the function of editing from the function of providing legal advice.
When an editor points out issues and suggests possible solutions, they should also be directing you to consult your legal representation. They can help you review the editor’s notes and decide on the most appropriate path forward.
It’s also worth noting that while editors may not assume legal risk the same way an author might, they can still become embroiled in legal proceedings or suffer damage to their professional credibility if they are not careful. When an author is unwilling to address certain issues, an editor (or publisher) may need to drop the project in order to protect themselves. Understanding an editor’s capacity ahead of time is in everyone’s best interest.
Plagiarism
Now that we’ve addressed the role of an editor, let’s take a look at some of the biggest legal risks that exist in the field of writing, starting with plagiarism.
Plagiarism is a legal issue that will sound familiar to lots of folks, especially as it’s a frequent topic in academia. Purdue Owl describes plagiarism as “using someone else’s ideas or words without giving them proper credit.” They also say that the act can be intentional or unintentional, which is where it can get tricky.
Causes & consequences
The causes of plagiarism can include things as innocuous as forgetting to cite a source properly in your work, or an erroneous belief that no one will notice or mention it if you just incorporate someone else’s idea into your work.
The discovery of plagiarism can result in reprimand from academic or professional associations or in lawsuits brought by the wronged party. In rarer cases, like the one examined here, plagiarism can even affect completely unrelated legal proceedings. Context and setting may dictate what happens to the plagiarist, but like all issues in this list, the consequences tend to be severe.
Prevention
An editor’s job isn’t necessarily to scan your work for plagiarism, but if we’re worried it’s happening, we’ll address it. If we’re working with the author directly, we’ll reach out to them. Otherwise, if we’re working with a publisher (either in-house or as a contractor), we’ll advise them of the concern.
Since plagiarism can be a relatively easy thing to commit by accident (simple citation errors abound), many authors worry they’ll stumble into it. The good news is that you can check for it yourself. There are a plethora of tools online which you can use to review your work. For instance, this one by Grammarly.
Otherwise, remember to record your sources and attribute them properly during the research stage. It’s far too easy to assume something you wrote down is your own idea if you don’t note where it came from.
Copyright
As per the Canadian government:
“[A] copyright owner has:
the sole right to produce or reproduce that work or a substantial part of it in any material form
the sole right to perform that work or any substantial part of it in public
if the work is unpublished, the right to publish it or any substantial part of it”
There is some crossover within plagiarism and copyright laws, of course, but copyright infringement alone doesn’t necessarily require a person to claim a work. An author could infringe on someone’s copyright by trying to distribute a work that does not belong to them, even if they gave full credit to the copyright holder.
It may also be important to note that a copyright holder does not necessarily mean the person who originates the idea. Consider such instances as when a copyright passes to an author’s estate after their death or when an employee invents a piece of technology within the context of their job, so their company owns the idea.
If you’re thinking of referencing a piece of media that’s under copyright, there are some key rules to note:
In order to use a work under copyright, you must typically seek permission or specific licensing. Some (but not all) copyright holders also require you to pay a royalty fee in order to use the work.
While fair use (or fair dealing) laws may allow you to use or reference part of a work for free, there are several requirements that must be met first.
Even if a piece of art is in the public domain, other media portrayals of it such as photographs may be under copyright.
Causes & consequences
Those who ignore or do not take the time to understand copyright rules are at great risk of copyright infringement.
When it comes to fair use, you may be able to reference a song in your book, for example, but it depends on what and how much you’re referencing. Titles are fine, for instance, but song lyrics can be fraught. Fair use usually means only a certain percentage of the whole work can be used, and since songs tend to be short, the risk of exceeding the allotment is great.
Of course, some songs now fall within the public domain. If so, these can be referenced without penalty or having to pay a royalty fee. But care must still be taken in these situations.
Consequences of copyright infringement range from copyright holders requesting that you remove the referenced material from your work (or that you remove your whole work from circulation) to bringing a lawsuit.
Prevention
The best way to ensure you’re not infringing on someone else’s copyright is to double check everything. Check what actually constitutes fair use with the element you want to reference, check if the work is actually in the public domain.
Some works are in the public domain, but it can be challenging to tell what those actually are. As I said before, a work’s originator is not always the holder of a copyright, and the laws also vary from country to country.
Always be ready to pay fees and request licensing if the work is under copyright.
Editors can help here. It may be part of their contract to determine if permissions are needed and to facilitate that process. Just remember: it’s always better to ask than to assume.
Defamation
PBS describes defamation as “any false information that harms the reputation of a person, business, or organization.” Libel and slander are two different forms of defamation, with the former being used more so for print or recorded media whereas the latter refers more to speech.
There are variables within defamation laws. Journalists, for example, must be able to talk about public figures as one means to fair and unbiased reporting. The industry is afforded more leniency to speak on these topics than the general public is, but there are also professional standards to meet. Care must still be taken to avoid doing unnecessary damage to a person’s reputation. Journalists cannot simply make up claims about a person, and they take particular pains not to imply that a person is guilty if a matter has yet to come before court. Consider how often the word “alleged” appears in such instances.
Other than satire (in which the humour and critique must be obvious to be valid), creative writing genres do not necessarily have such protections. Even telling the truth here can be tricky, though many people think of it as an easy defence against a charge of defamation. Truth, especially in cases like a fleeting statement someone once made, can be a notoriously difficult thing to prove in court.
Causes & consequences
Since a person can be charged with defamation or a suit can be brought against them even if they tell the truth, genres like memoir can be especially risky since they deal with reality. But even fiction authors can come into harm’s way if they base a character too closely on a real person.
If a person believes that they are the subject of a story, it’s probably because they are too identifiable. This can cause lasting impacts for that person’s reputation and even their quality of life.
Prevention
Accusations of defamation can be prevented with the right due diligence. Omitting certain stories outright can be difficult, especially for something like a memoir or if it’s important to the work’s overall theme. Instead, you may opt to alter both names and descriptions (name changes alone do relatively little). This can help somewhat, but the safest route is often to fictionalize the entire book.
When something is flagged
If you ever find your work flagged for these issues, first of all, take a deep breath. It’s not the end of the world—you’re just armed with the knowledge to protect yourself legally and professionally. Because beyond lawsuits, these issues put your own reputation and credibility at great risk
Lean on your support network. If an editor pointed out these concerns, you already have someone on your side who wants to help you. You can ask for suggestions to address the issues without compromising your artistic integrity. More often than not, they’ll have already made some recommendations.
And then there’s your lawyer. It’s your responsibility to consult with your legal counsel on the matter and decide how you want to proceed.
Above all, it pays to understand the risks involved in creating art. Consider these carefully before you begin a new project. And if something does come up, don’t feel like you have to abandon the idea wholesale. If you’ve prepared yourself properly, pivoting will be a lot less painful in both the short and long term.
Mary Kehoe provides structural, stylistic and copy editing services for a variety of written works through her agency, Elixir Editorial. From time to time she dabbles in her own writing projects which tend toward the speculative genre.
She is a member of both Editors Canada and the Chartered Institute of Editing and Proofreading (CIEP), as well as a founding member and former chair of the Toronto Arts & Letters Club writing group. A longtime lover of the English language, Mary is passionate about supporting writers on the journey to inspire the world.
