Volume 1, Issue 8 (Originally Published 23 April 2012)
From Craig Thompson and his travel stories, to Jo Biden and his speeches, to the Roman conception of the plagiarius: plagiarism has a long and mostly un-adjudicated history. We know it would put an end to our prospective careers, but just what is it?
The Little Book of Plagiarism by Richard Posner develops an understanding of plagiarism as ‘fraudulent copying.’ It involves the passing off of another’s work as one’s own, without acknowledgement or attribution. It is distinct from copyright in that its scope is the field of ideas or facts, rather than the form of the expression of ideas or facts. It is also largely concerned with reliance – the reader relies upon the plagiarism in a manner they would not do were they to know the true origins of the text. Thus an American judge can (supposedly) pass off the work of his clerk as his own judgment, and nobody care enough to #OccupyTheSeventhCircuit. Because nobody would be surprised to learn of the true author, and that author does not suffer unduly on account of the passing off, what appears at first as patent plagiarism is, at second glance, innocent.
Perhaps not key amongst the failures of the movie Anonymous, but a notable absence no less, is reference to Shakespeare’s plagiaristic affairs. Posner identifies the opening of Antony and Cleopatra as a rather blatant copy of a translation of Plutarch’s Life of Marc Antony. Compare:
“[S]he was layed under a pavilion of cloth of gold of tissue, apparelled and attired like the goddesse Venus” (Plutarch); with
“... she did lie / In her pavilion – cloth-of-gold of tissue – / O’erpicturing that Venus...” (The Earl of Oxford Shakespeare).
For what it’s worth, I’m told “Those lips that love’s own hand did make” was lifted from a brochure at the Stratford-Upon-Avon local pub. Quite unfortunately, Shakespeare was never required to face f ormer Justice Bernard Teague AO and the Board of Examiners.
A critical point in Posner’s discussion is that the fulfilment of the fraud and reliance components of plagiarism are susceptible to change in the face of different social norms. Ultimately, that sources of inspiration went unacknowledged and would likely not have been recognised by audiences in Shakespeare’s day is of little concern, as at that time “creativity was understood to be improvement rather than originality”: audiences did not expect nor rely upon the production of purely original texts.
It would seem the study of law is subject to those same 17th century norms: an incessant reliance upon hierarchical authority penalises originality in its own right, and creativity is rewarded only if understood in the sense of improvement, not so much upon the authority itself as in its application to new situations. What’s more, examiners hardly expect essays of pure originality — hence the AGLC.
If unattributed, versified appropriation is good enough for Shakespeare to avoid reproach, as Posner contends it is — “If this is plagiarism, then we need more plagiarism” — then perhaps a path is suggested for us, too:
Commit to verse the words of others ‘round you; “Law’s lived in life, not bound by logic UHU.” In verse, all bets are off; and stares of wonder Marks aplenty draw to your cheap rhyming plunder.
* The Little Book of Plagiarism (Richard Posner, 2007).
** Don’t plagiarise. As the Little Book says, it’s an “embarrassingly second rate” offense, committed by “pathetic, almost ridiculous” people.