Plagiarism 101

There's some confusion, understandably, amongst commenters about what constitutes both defamation and plagiarism. That's understandable - no one who visits here, either to criticise or support Michael Laws - appears to have an advanced law degree so can't be expected to comprehend the nuances of either.

So let's see if we can simplify things.

The potentially offending statement is: "...actually plagiarised another commercial brand!"

Several commenters have pointed out that under the Defamation Act, Mickey will have a defence if he can prove that statement to be true. They are correct. Hold that thought.

The Oxford Dictionary definition of plagiarism is "to take and use another person’s thoughts, writings, inventions etc. as one’s own". In other words, intent must be present.

So, for plagiarism to have occurred, the writer or artist must have seen someone elses work and then deliberately copied it - with subtle alterations - and tried to pass it off as their own. Thus for Mickey to succeed with the "truth" defence, a judge or jury must first be convinced that both of those things occurred with the tourism MRI logo. In effect, to prove truth the defendants (one MB Laws and D Warburton (on behalf of the ratepayers of Wanganui)) would first have to prove plagiarism.

And no, a "legal opinion" received by the MRI isn't proof - it's just that, an opinion. And frankly, we doubt any lawyer with even a rudimentary understanding of copyright law would use an inflammatory word like "plagiarised" without at least prefacing it with a qualifer like "possibly" or "appears to be". Even more likely, we think, is that a form of words such as "appears extremely similar to" may have been used, which Mickey the Headline Hunter has warped into "plagiarised". We could be wrong, of course, but we're still waiting for Mickey or Uwe Kroll to release the MRI minutes.

Seems the tourism MRI joins that long list of local organisations: Port of Wanganui, the Splash Centre Working Party, the Council itself... who consider themselves unaccountable to the people who provide them with the money they throw around.

But back tp the topic. If you're thinking that it's easy to prove that a person copied someone else's work, think again. The most famous recent example of just how impossible this is to prove is The Da Vinci Code case, in which the authors of a 1982 book, The Holy Blood and the Holy Grail accused Dan Brown of stealing "the whole architecture" of their work.

Now anyone who's even flicked through both books at an airport bookstore would probably have accepted that there were similarities between the two. But the plaintiffs lost, with the judge holding that any similarity between the two books was due to "unprotectable ideas".

Lest anyone be thinking at this point that "unprotectable ideas" must be confined to very broad concepts indeed, think again. Have a look at these logos, three of which are in common use in Europe and one of which is that of a NZ company:

None are held to infringe the copyright of any of the others... though The Bruges Group, MTC and Convention Management are politely suggesting that the next country to take on the EU Presidency might like to consider a slightly different design.

Bruges complained publicly when the EU design first came out, but lawyers told them not to bother. Birds in flight are another of those "unprotectable ideas".

Actions for plagiarism are notoriously tricky, because they must prove an element of intent: the second designer did see the work of the first and intentionally copied it and tried to pass it off as his own. Short of the designer admitting this, or a colleague testifying against him or her, it's then a matter of the court's judgement which, in a civil matter, is decided on the balance of probabilities. And the elements copied must not be "unprotectable" which, though not well defined, seems to mean broad general ideas like mountains, rivers, birds in flight and so on.

Thus for Mickey to advance truth as a defence, it would first have to be proven that his allegation of plagiarism were true.

Good luck with that, Mickey.

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