No doubt you’ve heard, by now, about the legal dispute between Dawn Dorland and Sonya Larson, brought to light by a recent New York Times article titled “Who Is the Bad Art Friend?”, written by Robert Kolker and published in October of 2021 in The New York Times Magazine. This case begs the question: how much can we draw from our own life, and the life of others, before it veers into sticky plagiarism and copyright territory?
Another case, this one in London, centres on two cookbooks that have strikingly similar phrasing in describing food traditions, as reported by The Bookseller and The Guardian, among other outlets.
Boni and John recently discussed these two cases, and what it means for authors, on The Empowered Author podcast, which you can listen to right here, or keep reading for the highlights and takeaways.
What’s the Problem?
These two recent cases are connected by the common threads of plagiarism, copyright, and the question of original content.
In the case of Dorland v Larson, the case centers around content inspired or borrowed from a post created by Dorland in a private Facebook group created to share her kidney donation experience, in which Dorland had shared a letter she wrote to her donor recipient. Parts of this letter showed up in a short story written by Larson some time after, about a woman who donates her kidney. When Dorland discovered this, she found what she felt were extraordinary similarities between this character that Sonya Larson had created and her own experience.
This raises the questions: who has the right to our stories and who has the right to write about our stories? As writers, we use real life to inform the stories that we create. Whether we’re writing fiction or nonfiction, it is the information we receive from or observe in others that provide the raw material for what we write.
Where’s The Line Between Plagiarism and Inspiration?
You might be asking yourself, as John did, “Don’t we all write about our personal experiences?” And don’t those experiences involve glimpses into the lives of others? It is a testament to our shared humanity that common themes run through literary works. The challenge is less about when we are writing our own experiences, but when we are borrowing the experiences of others.
Anyone who has taken a writing workshop has been trained to develop characters by looking around and absorbing what you see in the people around you. What are their character traits? How do they walk? What are the emotional wounds that they might be carrying around and that are contributing to their behaviours? We are able to breathe life into our fiction characters by drawing from these observations.
In nonfiction memoir, in particular, writers are drawing from their own experiences and the characters in their world. It is not realistic or reasonable to paint all those characters in our nonfiction as Pollyanna-ish. We are all flawed human beings. Dorland v Larson is a cautionary tale about how we portray real-life people in our literary work, and what kind of care we take to avoid plagiarizing, or changing the intent of the original behaviour described in the original work or content. Part of the Dorland v Larson case hinges on the idea that Larson took what Dorland perceived to be an altruistic act, and ascribed a negative motivation to it, which was problematic specifically because it was apparent to anyone who knew Dorland that the short story was based on her experience.
The Gray Area of Original Content
What about those cookbooks? This year, Bloomsbury pulled the plug on Makan, a cookbook by London chef Elizabeth Haigh because of noticeable similarities between the content of that cookbook and Growing Up in a Nonya Kitchen, by Sharon Wee, published in 2012.
Take a look at this line from Growing Up In a Nonya Kitchen:
“My mother, like many of her friends, placed their most frequently used condiments and ingredients within easy access while they cooked. That often meant a plastic tray where there were small bottles of soy sauces, sesame oil and jars of minced garlic salt and sugar. In the past there would also have been a metal container to hold recycled cooking oil.”
Then, read this one, from Makan:
“My mother kept her most frequently used condiments and ingredients within easy reach of where she cooked. That often meant a plastic tray full of little jars of oils, crispy fried shallot or garlic, crushed garlic, salt and sugar. There was also usually an old metal pot for recycling or discarded frying oil.”
In the kitchen, how many people do you think have plastic tray for condiments? It’s not unusual to have a plastic tray for condiments. And it’s not unusual that it will have spices and oils.
We’d be hard-pressed to deny the uncanny similarities between these two descriptions. We are all familiar as authors with doing research, which involves looking at what other people have written. Of course, we reference and we cite, but our own work must be original. It’s not enough to change a word here or there.
A (Very) Brief History of Copyright
This is not a new problem, by any means. Plagiarism and stolen content have probably been an issue as long as the written word has been around. Copyright laws were first introduced back in the 1700s in the UK. It’s important to understand that holding a copyright and registering a copyright are two different things. You have copyright over your work the moment it is fixed. You cannot copyright an idea. But once it is fixed, whether in a digital document, or handwritten the copyright is automatically yours. If it’s original, the notion of registering your copyright is only to protect yourself and make it easier to defend yourself, in the event your copyright has been infringed upon.
Hungry for Content
Getting content used to be a lot of work! Writers really had to go hunting for content ideas by reading or talking to people, but these days, content is at our fingertips, thanks to the internet and the variety of formats in which content is delivered. We consume massive amounts of information in a short period of time. We’re juggling many things. We’re accessing information all over the place. If we are not disciplined with tech, keeping track of where we are accessing our reference information, it is more likely we will find ourselves in some trouble.
What About Fair Use (Fair Dealing)?
Known as Fair Use in the United States and Fair Dealing in Canada, there are situations where it is permissible to reproduce small excerpts from someone else’s work.
For example, in this blog post, we shared examples from these news stories. The purpose of these news stories is for people to consume them. So it is permissible for us in this podcast to reproduce short bits under fair use and fair dealing, because they were news items. Fair use and fair dealing can also apply to the use of excerpts or quotes from other people’s work, but it’s a gray area. And what you might get away with versus what might be defensible in a court of law are often two different things.
Permissions or Bust
It’s been common for our nonfiction authors over the last five or six years to want to use quotes in their own work. In the process of securing permission to use the quotes we ask our authors, and we assist when necessary, to go through the process of securing permission for every quote or excerpt they want to use.
Often those quotes have included Brené Brown. Brené Brown, right on her website, says she does not extend permission for anyone to use any of her quotes. A lack of response to a permissions request is not a signal to go ahead and use something without permission — express permission must be given.
An aware and informed author would not appreciate their work being excerpted or quoted without permission. It behooves authors to return the favor and seek and obtain permissions for any of the quotes and excerpts to be used in a book. If there is no response, the text in question should be taken out of the book.
What Can Authors Do?
At a minimum, authors can keep copious notes when researching their books, noting sources, and checking the finished product against those sources. There are tools like Copyscape which can detect duplicate content (usually a sign of plagiarism unless it’s the same author in both cases) if it exists on the internet.
Most importantly, authors need to make sure they know best practices around making sure their content is original. Use as much detail as can be pulled up from their heart and mind and memory banks of exactly what they’re trying to convey. Paying attention to small details will help make it original.
And we probably don’t have to say it — but we will: don’t ever borrow material from someone else and claim it as your own.