Plagiarism, Norms, and the Limits of Theft Law: Some ... - English

J-GREEN2 12/18/02 10:48 AM
180 HASTINGS LAW JOURNAL [Vol. 54
that few, if any, artists or writers or scholars always achieve
originality. None of us wholly invents the stories we tell, the
metaphors we use, or the arguments we espouse. We all work within
a cultural tradition, and, to some degree, we all absorb those cultural
traditions by copying. In a field like law, for example, much of the
most interesting scholarship consists in combining insights gained in
other fields (such as philosophy, history, and economics) in new ways
and in new contexts. Virtually every creative artist and
scholar suffers from what Harold Bloom has called (in a somewhat
different context) the “anxiety of influence.” 45 Many influences are
unconscious. An idea, phrase, argument, melody, or insight read or
heard long ago can lodge in the unconscious. 46 Writers with an
unusually retentive mind, such as those with a photographic memory,
are particularly at risk of failing to attribute. 47
Moreover, if one were to attempt to attribute each and every
source of one’s ideas, one’s work would likely suffer. Excessive
concern with one’s sources can thwart the creative process and lead to
pedantry. (Certainly, one cannot write on the subject of plagiarism
without a certain nagging sense of paranoia about the originality of
one’s ideas and the scrupulousness of one’s citations!) Indeed, it may
at times seem pointless to use new language to describe a fact or
phenomenon that has become part of our common culture. 48 What is
the point of finding new words to describe Einstein’s Theory of
45. HAROLD BLOOM, THE ANXIETY OF INFLUENCE: A THEORY OF POETRY passim
(2d ed. 1997); see also BOWERS, supra note 1, at 106 (“One person’s research builds upon
everyone else’s, and footnotes don’t always itemize the total debt. Virtually every scholar
believes himself to have been plagiarized and, conversely, worries that his neighbors will
find their work unattested in his.”); John H. Timmerman, The Shameless Magpie: John
Steinbeck, Plagiarism, and the Ear of the Artist, in THE STEINBECK QUESTION: NEW
ESSAYS IN CRITICISM 260 (Donald R. Noble ed., 1993).
46. For examples of “unconscious plagiarism” in the copyright context, see infra note
143.
47. As K.R. St. Onge relates: In 1951, the newly inaugurated president of Cornell
University, Dean Malott, faced the prospect of dismissal for plagiarism after it was
discovered that his inaugural address contained a few hundred words taken from an
unattributed source. ST. ONGE, supra note 11, at 6–7. As legend has it, Malott invited the
Cornell Board of Trustees to his study, pointed to a wall of books he claimed to have read
and asked the Board Chairman to pick one at random and read from it. Id. The
Chairman barely began reading when Malott proceeded to recite verbatim some of the
paragraphs that followed. Id. Malott then said, “[y]ou see my problem gentlemen. I have
a photographic memory and I simply cannot recall with confidence whether what I am
writing is or isn’t original.” Id. As a result of this demonstration, Malott was allowed to
keep his job. Id.
48. Cf. Newman v. Burgin, 930 F.2d 955, 958 (1st Cir. 1991) (alleged plagiarist argued
that work “reflected general knowledge among scholars in the field and did not require
attribution”).