When Stealing is Not a Crime, or My Rough Guide Ordeal Continued

If Paul Simpson had been my student, I know just what I would have done: taken out a great big fat red marker and covered his title page with a blazing O-F. Then, depending on if he were a middle school or high school student, or a college freshman or upperclassman, or a graduate student, I would have stopped there, failed him for the course, sent him to the dean or VP for Academic Affairs, filed an Academic Misconduct notice with Student Judicial Affairs, or whatever other route was appropriate. Our little talk would have been the first in a long line of unpleasantries for Paul.

But he’s not my student or anyone else’s. He is a professional writer and I have yet to find a direct route to the man. “Paul Simpson” is a fairly common name, and for all I know could be a pseudonym. He’s quite the Renaissance man; his other Rough Guides include titles on Cult Pop, Kids’ Movies, Westerns, Elvis, Muhammed Ali, and Superheroes.

Publishers are the ones who usually deal with this, anyway. First I started with Elements’ publisher and was unsurprised to find that Fell Press wouldn’t pursue it. It is tiny. Rough Guides is a division of Penguin, and in the US Penguin is a division of Pearson. In other words,  if you don’t have a stable of idle lawyers and very deep pockets, forget it. I thought I might fare better with Scholastic UK, but there were some other problems there. Scholastic UK published The Definitive Guide a few months after The Rough Guide to His Dark Materials. Although the passages Simpson weakly paraphrased from Elements are also in The Definitive Guide, Elements is the one Simpson used. Scholastic UK didn’t consider the case strong enough to pursue.

I consulted Jonathan Bailey, who runs a very informative site called plagiarismtoday.com.

From him I learned that the amount of material plagiarized makes a difference to the courts and that many contracts require authors and publishers to jointly pursue claims. From an attorney at the Authors Guild I learned as well that plagiarism isn’t what I’d have to prove but instead copyright infringement, and that is  much tougher.

I doubt that there is an English teacher on the planet who would accept the passages in my earlier posts as legitimate paraphrases, even if Simpson had cited his source (he did not). We teach our students that plagiarism is theft. We can sanction them if they steal another writer’s work. But once they leave school, the rules change.

And note here that the situation I’m reviewing is not an ambiguous one: we are not talking about theft of ideas or unconscious influences: this is low-level, obvious stuff.

But I’d have a very hard time regardless of how much money I could spend on lawyers in getting any satisfaction in the courts were I to claim copyright infringement. There are two big problems I’d face:

1. I’d have to prove financial damages. I’d have to show that Simpson’s use of my work cut into my profits.

2. de minimis non curat lex, or the law doesn’t care about small things: Simpson didn’t lift enough of my writing for it to matter to the courts. As Attorney Julie Hilden, who writes  commentary for FindLaw,  puts it: “the rule of thumb for many practicing copyright lawyers is that, if a work copies only a small fraction of another work, it’s probably safe. For instance, say you reprint one page of a two-hundred-page novel. Most would say it’s not copyright infringement, even if that page is copied verbatim.”

Did I pursue it with Rough Guides? Oh, yes. First I thought Mark Ellingham was the man to have a little talk with, but he had moved on. He referred me to Andrew Lockett, Reference Director for Rough Guides. His reply to me:  “As you know I wanted to look at the passages cited in context and I have now done so in addition to communicating with the author of our book Paul Simpson and talking to our legal department who believe on the basis of these passages cited there was no infringement of copyright.”

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