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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In hot water

It seems Velocity are making no further comment, at least at this stage.

Nothing from Uwe Kroll, either, though to be fair those questions were only asked late last night and not everyone obsessively reads their emails every ten minutes like most Watchers and some commenters.

We do, however, have a definitive answer for the many commenters who asked whether it was possible to sue a company and whether any such action had been brought in NZ. Commenters such as our old friend Pottymouth, for instance, who put it this way:

Hey arsehole at 9.30pm.
Can't you read, moron?
You can't defame a company!
The challenge remains for you legal dickheads in here - name a case in NZ defamation law where a company successfully sued for defamation.
I'll make it easy for you.
There isn't one.

Sounds remarkably like Mickey, doesn't it? Not saying that it is, of course - but it seems that his supporters approach debate in the same way as their hero: abuse your opponents, then throw out challenges which are only obliquely relevant in the hope of diverting debate (whether or not it's been done before, or whether it was successful, doesn't excuse Mickey exposing ratepayers to an unnecessary and expensive legal battle).

Rather than assume, as various commenters have done, that a close examination of our own navels would produce an expert legal opinion we instead asked Ursula Cheer, Associate Professor and Proctor at the School of Law at the University of Canterbury and co-author (with J Burrows) of Media Law in New Zealand (5th ed) (2005). She kindly responded as follows:

LW: We understand it is possible to defame a corporation under the Defamation Act, as a corporation is a "natural person" under law?

UC: Yes, companies can sue. It doesn’t matter whether they are regarded as natural persons or not. Section 6 of the Defamation Act allows corporations to sue for damages if they can show that financial or commercial loss has occurred or is likely to occur.

LW: Commenters have alleged that it is, however, effectively impossible for a company to win such an action because it needs to show either the possibility or the fact of pecuniary loss as a result of the alleged defamation. Our own research indicates this is correct - if so, how difficult would it be, in your opinion, for a company to convince a jury that the statement had such an effect (as opposed to any number of external factors)?

UC: Whether this would be successful depends on the evidence in each case. If actual financial loss has occurred then you look to produce evidence of that eg: loss of takings, angry letters from clients, etc. Likely loss is obviously more difficult to establish. Again, the plaintiff just puts forward as much evidence as they can to support the likely loss.

LW: Other commenters have alleged that no defendant has ever been found to have defamed a company (as opposed to an individual) in New Zealand. Is this the case? If not, can you cite some case law for us?

UC: A number of cases have been successful in New Zealand and often companies sue each other. The best example is Mount Cook Group Ltd v Johnstone Motors Ltd [1990] 2 NZLR 488, where Mount Cook was able to satisfy the court that its goodwill had been damaged leading to likely loss, although the court took a conservative view and the damages were small.

We'll make it easy for you, Pottymouth, since your grasp of the language suggests a reading age of 10 or under.

Hey arsehole at 9.30pm.

On their behalf, greetings to you, emotive nincompoop @ 9.40 pm

Can't you read, moron?

They can, it seems, better than you.

You can't defame a company!

Yes, you can.

The challenge remains for you legal dickheads in here - name a case in NZ defamation law where a company successfully sued for defamation.

See above. We assume an associate professor of law and co-author of a definitive book on the subject doesn't count as a "legal dickhead"... though if you'd like to match your law degree against her LLB/LLM, by all means feel free. The "challenge" for you, by the way, is to try and debate other adults in an adult manner.

I'll make it easy for you.
There isn't one.

We'll make it even easier for you: there is, and you're an idiot.

Much as we might enjoy the sport involved in shooting the dull-witted fish in this particular barrel, this episode serves to highlight two important points:

1. Mickey's supporters, just like Mickey himself, aren't above stating wild speculation - or perhaps even known lies - as though they were fact. Comments here should be read with that in mind.
2. Even more importantly, whether or not Velocity sues, the facts are now incontrovertible. And they are that Mayor Michael Laws has knowingly and recklessly exposed the ratepayers of Wanganui to the potential of paying to defend him against a defamation suit; and to the costs that would be incurred (in terms of both punitive and actual damages and plaintiff's costs) in the event the plaintiffs were successful.

In most democracies, it'd be about now that we were hearing the word "impeachment" being bandied about.

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