Matt Turner, Agora's In-House Legal Counsel, Answers Your Questions

We asked Matt Turner, Agora's in-house counsel, a question frequently asked by our students:

"What's the difference between plagiarism and copyright infringement? How much can I "borrow"? As a copywriter, what do I need to know to protect myself?"

Here's what Matt had to say …

"Believe it or not, plagiarism is not illegal. Your high school English teacher may have been able to fail you if you plagiarized something, but a judge cannot hold you legally accountable. Copyright infringement, though, is illegal.

"What's the difference? Simple.

"You are guilty of copyright infringement if you use the EXACT WORDS (or enough of the EXACT WORDS) of another author. On the other hand, plagiarism is essentially when you take an IDEA from another author and re-work his actual words to express the same idea. So long as you rework his idea with your own original words, you are not liable for copyright infringement. And since plagiarism is a state law concept and the federal 1976 Copyright Act pre-empts all state law, plagiarism is no longer a legal action. You're free and clear to re-work another author's ideas into your own words. Ideas are owned by no one.

"Now, if you wish to actually quote from another author's work, that's a little different. Quoting too much can make you liable for copyright infringement. However, we also have the doctrine of "fair use." This means that it's okay for you to take a little from another author's big work and put it in your medium-to-big work. But you can't take another author's big work and put it in your little work – because that makes your work a lot of their work.

"Get it?

"If not, re-read what I just said … very slowly. That's the best way I can put it. If I were to quote the law, I would confuse you even more.

"You also need to know that when you use research in a sales letter, you are operating in the "commercial speech" world (i.e., copy = commercial speech, and editorial = non-commmercial speech). This distinction is important because the commercial speech world gets less First Amendment protection and gets away with a lot less (e.g., in commercial speech the "fair use" doctrine (see above) can be used but not as much as in non-commercial speech).

"By the way, your question brings up another more subtle point. Specifically, copywriters often like to quote their sources in such a way that it almost implies an endorsement by that group. For example, "And even The Wall Street Journal agrees, as they wrote … "

"Be carefull! There is no hard and fast rule here – and each case is looked at on its facts. But don't leave yourself open to a claim that your copy is 'trading off' the reputation of another entity. Citing an authoritative source is fine, but using the source's material and reputation in a manner that is too glaring can be dangerous to your wallet."

Copywriting Legalities

The Legalities of Copywriting Made Simple

Legal expert Matt Turner reveals the legal issues that can impact copy and marketing materials. Learn More »

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Published: November 5, 2001

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