Among the books Judge Posner will publish this year is one called "The Little Book of Plagiarism." He sent me a copy awhile back in manuscript form, consisting of 43 single space pages. The book opens with the story, much recounted in the news this year, of Harvard student Kaavya Viswanathan's "chick lit" novel and her borrowings from the works of Megan McCafferty. Ms. Viswanathan's publisher ended up dumping over the affair; never explained was whether Ms. Viswanathan herself copied or whether it was the polishing company that assisted her. Plagiairism, as Judge Posner notes, can be a "gaudy offfense," which has received increasing attention. Judge Posner observes that digitization "has made it at once easier to commit plagiarism and easier to detect." This is also true for law students: while serving on a faculty committee dealing with poorly performing students, we came across examples of the phenomenon Judge Posner points out.
Plagiairism is not always copyright infringement, and certainly not when the work from which the plagiarist borrows is in the public domain. Today's New York Times Arts section gives an example with Bob Dylan's new album "Modern Times." Times writer Motoko Rich (giving attribution is a factor in plagiarism disputes) discusses a number of instances in which Internet researchers have discovered unattributed borrowing by Dylan from the slender poetical works of Henry Timrod, sometimes called the poet laureate of the Confederacy, like this one:
A round of precious hours.
Oh! here, in that summer
noon I basked.
And strove; with logic frailer than
More frailer than the flowers,
these precious hours.
Other examples are given, sufficient for me at least to conclude that there was no independent creation, especially given Dylan's interest in the Civil War. But even had Timrod's works been under copyright, it is unlikely a suit would have succeeded, although it is very likely one would have been brought. Dylan fans are divided on their attitude to the Timrod borrowing. One describes him as a "thieving little swine." Another says it is "characteristic of great artists and songsters to immediately draw on their predecessors," a statement that casts Timrod in a new, fascinating historical lineage. Harold Bloom's classic "The Anxiety of Influence" captures nicely this final point with its thesis that the great steal only to make what they stole their own in a struggle for self-identity. Whether Dylan has such a Freudian relationship with Timrod is most doubtful.