An argument for when it should be grounds for a LEGAL claim
I’m not down with stealing ideas, expression, innovation, and identity. My disfavor for those things fuels the passion for what I do.
This past Tuesday, I saw the following in my Twitter timeline (read from the bottom-up):
I checked out the Twitter conversation between @luvvie, @soulamami, @brokeymcpoverty, and @egemini618, and learned that this isn’t an isolated occurrence. Big media outlets apparently [allegedly?] create works derived from articles from smaller media outlets but fail to give proper credit.
The Background Story – Luvvie v. Gawker
Recently, Chris Brown (yes, that Chris Brown) deleted his Twitter account. The deletion was in response to being outrageously antagonized by comedienne, Jenny Johnson (I use “comedienne” loosely since I couldn’t find one shred of comedy in her profile, but that’s how she is referred). Luvvie posted a blog entry discussing the manner and frequency in which Jenny Johnson attacked Chris Brown and questioning her motives. The gist of the article was not in support of Chris Brown in any way, but rather an insightful reflection on why white feminists have ultra-hatred for Chris Brown for his abuse of Rhianna that is not shown toward Charlie Sheen. She argued that it was hard to believe it was NOT racially motivated. I encourage everyone to read her article, if for nothing else but to view Jenny Johnson’s awful tweets in context.
Luvvie posted her article prior to 7:30 A.M., as the first comment was posted at 7:32 A.M. Twelve hours later, she discovers that Gawker posted an article titled, “Hating Chris Brown isn’t Racist Until You Make It Racist”, which, by both title and content, was a retort to her article. Yes, the Gawker article, written by Cord Jefferson, the west coast editor of Gawker (yes, an editor), literally lifted content from Luvvie’s article by extensively paraphrasing the entire blog entry and concluding with a retort/rebuttal of Luvvie’s main arguments WITHOUT any mention of her personally, of her blog, or a link to her article. O___o
“Not giving credit is wack.”
As you see from the tweets above, I asked Luvvie the Number One reason this upset her. Her answer was “not giving credit is wack”. Now, I’m a fan of Luvvie because she is leading a new genre of comedy that is purely in written form and not intended to be put into a story line, a tv or film script, etc., and she uses her comedy to provide cogent arguments and succinct analysis on important issues and current events (and well, hilarious internet photos and screenshots of poor grammar/spelling and terrible #alphets). If I had a chance to interview her in-person, I’m confident her answer would be thoroughly explained, but there is only so much one can convey in 140 characters.
Sidebar: Honestly, “wack” is the best word choice in some instances. I’ve thought about using it in oral argument in court proceedings. May it please the court…
Anywhoo, let’s talk about WHY failing to give credit is “wack”.
Failure to give credit is PLAGIARISM. Plagiarism is presenting another’s work or ideas as your own. One avoids plagiarism by simply acknowledging the original source of the idea and work. This means three things: (1) making sure the reader knows what ideas and work is NOT original to you, (2) specifically citing the name of the original author, and (3) providing information on where the reader can find or view the original work or idea. It’s called “author attribution”. In the words of @soulamami, this principle is “Journo 101 + professional courtesy.” (See what I did there?)
Our society dislikes plagiarism because it is INTELLECTUAL DECEIT. Allowing people to believe you were brilliant enough to generate an idea or expression that did not originate with you is deceitful and is unfair to the original author. More about the unfairness part later.
Plagiarism is often compared and contrasted with copyright infringement because there is some overlap in the two concepts. Both plagiarism and copyright infringement involve the use of content that is original to someone else. However, plagiarism does not amount to copyright infringement unless (a) the plagiarist has used copyrightable expression of another without permission, and (b) the use of the copied expression does not constitute as “fair use”. In turn, copyright infringement does not amount to plagiarism unless there is lack of author attribution. (And just in case you’re wondering, Gawker’s use of Luvvie’s copyrighted content is arguably a fair use primarily because its article is providing criticism and commentary of Luvvie’s copyrighted content and the new work is thus transformative – which is why we must talk about what remedies are available for plagiarism.)
**Most** important for this article is that plagiarism is an ETHICAL violation, while copyright infringement is a LEGAL violation. What does that mean? It means that if someone plagiarizes your work, the law could care less. It has no remedy for failure to give author attribution for communicative products like news articles and blog postings. It only has remedy for a trademark infringement, copyright infringement, and unfair competition. In 2003, the United States Supreme Court blatantly told authors to stop using trademark infringement/unfair competition law to vindicate mere plagiarism. Yes, this is a crushing blow. See, Dastar Corp v. Twentieth Century Fox Film Corp. at 33-34, 36.
So…SCOTUS, let me get this right. You’re saying that the only remedy left to a victim of plagiarism is to publicly shame the plagiarist? Make an ethical complaint to some organization? Get an apology? *cue the somber violin music* In my opinion, that is überWACK and inadequate.
Luvvie lost opportunities for brand exposure and expansion. Gawker’s failure to attribute credit to Luvvie as the origin of the points it used and rebutted directly resulted in a lost opportunities for exposure and expansion of Luvvie’s brand(s). Gawker is a much larger publication than AwesomelyLuvvie.com. Citing her and/or linking her article would have resulted in the kind of publicity that a smaller publication could only hope for, but can hardly pay for.
How can any of the currently available remedies for plagiarism compensate or make up for the lost opportunities for one’s brand? They cannot. Even if they could, the cost of pursuing these remedies without a statutory provision for recouping costs and attorneys fees would deter most.
It certainly BEGS THE QUESTION of WHY Gawker couldn’t take 2 minutes to include a link to Luvvie’s article. If the content was good enough to inspire a retort, why not include a link? *side eye*
At tma| The Brand Infringement Firm, we are a proponent of “if you’re going to use someone else’s stuff to generate a profit, make sure said person is getting what they’re supposed to get in exchange”. Make no mistake about it: Gawker and AwesomelyLuvvie.com generate useful content that attracts readers and they are paid by advertisers to continue generating the content that brings site traffic. If Cord Jefferson wanted to use Luvvie’s content to generate content for Gawker’s site, he should have cited to Luvvie. Since he did not, she took a loss – a loss of traffic to her site, which for a blogger, is the pilot light to bring new opportunities and increase revenues. Luvvie should be entitled to compensation for those losses. This isn’t a law review article, so I’m not delving in to details on the best formulas for brand valuation and monetizing lost opportunities, nor will I delve into proposed solutions to Congress on how they should amend trademark and copyright law so that certain forms of plagiarism are grounds for a legal claim. What I am saying is that plagiarism is more than breaking a pinky promise of courtesy to your fellow journalists and writers, and its effects can amount to more than what an academic and professional slap on the wrist can compensate.
Disclaimer: The aforementioned analysis is my own. I’m an attorney and thus, trained to advocate a position. I am not a judge, fact finder, or tribunal, so the analysis and conclusions above should not be construed as a definitive decision of Gawker’s liability. Heck, we haven’t even heard Gawker’s side of the story. Well, except this.