From a review I wrote back in February 2007 when I was living in Savannah. Posner poses important and relevant questions for everyone involved in creating intellectual property. The force of his argument underscores how serious the issue is, or will be, given that the chief export of the United States in the 21st century will likely be culture and intellectual property. —J.S.

The cult of plagiarism

What is it, why it matters and other questions in The Little Book of Plagiarism

If individualism is characteristic of modernity, Richard A. Posner asserts in his new treatise of legal philosophy, The Little Book of Plagiarism, then plagiarism is the by-product of contemporary society’s desire to maintain a cult of personality.

Plagiarism, meanwhile, has been in so many headlines in recent years, you’d think intellectual worry-wart Walter Benjamin might have been right when he feared, in Illuminations, for the value of authenticity in light of mechanical — or, in the parlance of the 21st century, digital — reproduction.

Making plagiarism news are Kaavya Viswanathan, author of How Opal Mehta Got Kissed, Got Wild, and Got a Life, J.K. Rowling, of Harry Potter fame, historians Stephen Ambrose and Doris Kearns Goodwin as well as legal scholars Laurence Tribe and Alan Dershowitz.

A high-profile case came in December when a London newspaper alleged that novelist Ian McEwan plagiarized part of his award-winning book, Atonement. The newspaper found strikingly similar passages in “No Time for Romance,” the autobiography of romance novelist Lucilla Andrews.

Margaret Atwood, Kazuo Ishiguro, John Updike, Zadie Smith, Martin Amis and even Thomas Pynchon, famed for dodging the public spotlight, wrote a letter to London’s Daily Mail asserting that if he were guilty, they were all guilty, as novels are a product of raw experience mediated by an imaginative mind.

The most recent, and perhaps most bizarre report came last week when it was revealed that numerous CDs by the late British pianist Joyce Hatto, a recluse who recorded work but didn’t perform in public, were not made by Hatto but by other pianists.

As music critic David Patrick Stearns mused in this week’s Philadelphia Enquirer: “Verifying Hatto’s entire discography … could take years. Meanwhile, is it possible that her career, as it is now perceived, never existed at all?”

Is plagiarism as rampant as it seems? Or, given technological advances, are there just more ways of detecting it? Is authenticity, as Benjamin fretted, on the decline? What is plagiarism, anyway? Its history? And why do we care?

Hence, the focus of Posner’s elegant inquiry.

“What makes plagiarism a fascinating subject,” Posner writes, “is the ambiguity of the concept, its complex relations to other disapproved practices of copying, including copyright infringement, the variety of its applications, its historical and cultural relativity, its contested normative significance, the mysterious motives and curious excuses of its practitioners, the means of detection, and the forms of punishment and absolution.”

As a judge on the United State Seventh Circuit Court of Appeals in Chicago, Posner is exceptionally qualified to explore the many legal and ethical nuances, and logical dead-ends, of plagiarism. It’s a pleasure to read how one of the foremost legal minds in the country navigates this bumpy intellectual terrain, illuminating aspects of the issue in convincing and often surprising ways.

For instance, defining plagiarism. It’s not as simply as you’d think.

It’s not merely “literary theft.” Copying, borrowing, alluding and stealing, Posner writes – any of these might adequately describe plagiarism, but then again, given enough scrutiny, they might be completely erroneous. And when it comes to copyright infringement, the water gets all the murkier: “… not all plagiarism is copyright infringement and not all copyright infringement is plagiarism.”

Plagiarism instead must be defined as a kind of fraud that causes harm to at least one party while inducing reliance by a reader (or listener in the case of Hatto) who cares about being deceived. By reliance, Posner means the reader (or listener) does something because he believes the plagiarized work to be original, i.e., he relied on a falsehood.

There’s quite a pedigree to be found among plagiarism’s historical roots. Lawrence Stern and Jonathan Swift were avid copycats, as was Shakespeare, but it’s plagiarism only in hindsight.

The literary mode of Shakespeare’s day was creative imitation. Posner points out how the image of Cleopatra on her barge passed through Plutarch, Shakespeare and T.S. Eliot. Each passage is similar in content and form, but the language … is that plagiarism? McEwan’s defenders would demur.

As with most things, it boils down to money. As the consumer-driven marketplace for art arose beginning in the Italian Renaissance, the need to identify the maker of the art – by naming, or branding, him – became more important. As the stakes grew, the interest in protecting the brand name grew. It’s little wonder why plagiarism hits the headlines.

Moreover, our anxiety over plagiarism is tied to how we developed psychologically as a culture. As society grew to accommodate ever-increasing definitions of individualism, a “cult of personality” emerged, Posner writes.

An up-to-the-minute example? Some 40,000 blogs are started every day.

“Each of us thinks that our contribution to society is unique and so deserves public recognition, which plagiarism clouds,” Posner writes. “Individualism also creates heterogeneity of demands for expressive and intellectual products … the greater the demand for variety … the greater the demand for originality.”

Savannah Morning News

February 25, 2007