Plagiarism vs. Copyright Infringement: What’s the Difference?
Many celebs now wish they had known it.
Trivia time: What do these celebrities have in common: Jennifer Lopez, Gigi Hadid, 50 Cent, Jessica Simpson, Khloé and Kim Kardashian, Miley Cyrus, Dua Lipa, Justin Bieber, and Ariana Grande?
Answer: They were each sued because they reposted pictures of themselves on social media taken by professional photographers – usually photos these photographers posted on social media to show off their work.
Trivia time, part 2: Were they sued for plagiarism, copyright infringement, or both? Indeed, what’s the difference between those concepts? Read on to find out.
Distinguishing between Plagiarism and Copyright Infringement
Let’s distinguish between plagiarism and copyright. Plagiarism is using someone else’s idea or text without crediting the source. For example, it would be plagiarism to write about the physics theory of general relativity without crediting Albert Einstein, who discovered it.
By contrast, copyright infringement is copying all or even a substantial part of someone else’s creative work without permission from the copyright owner. For example, using a photograph taken by someone else as artwork on a website would be copyright infringement unless you get the copyright owner's permission. Sometimes, the legal principle of fair use allows you to copy someone else’s copyright property without permission, but that’s a complex subject for another day.
Here’s the critical part: Giving credit does not obviate copyright infringement. Many people in business mistakenly think it is sufficient to give credit to the source when they really need permission, namely, a license to use someone else’s copyright property. Even if you scrupulously use quotation marks and faithfully cite all of your sources, unauthorized copying can be copyright infringement. For example, you can’t repost on Instagram a photo owned by someone else just because you give credit to the account from which you got the photo.
Plagiarism and copyright infringement are circles that partially overlap. For example, if you write an article using a paragraph of someone else’s text verbatim and don’t cite the source, it’s likely both.
Consequences of Violations
The law treats the two offenses differently. Plagiarism that is not copyright infringement is just a moral offense. It’s not against the law. This occurs when you don’t cite the sources of your ideas and information but don’t copy the material of others.
On the other hand, copyright infringement is illegal. Copyright infringement can be a crime in egregious cases, but it is usually asserted in civil suits for money and an injunction to stop the conduct.
A successful copyright infringement plaintiff might recover all of its actual damages, the profits earned by the infringer (no double counting, though), and its attorneys’ fees. In place of recovering actual damages and the infringer’s profits, the successful plaintiff might be able to recover up to $150,000 per work infringed, such as per photo used without permission. To recover big damages, the prospective plaintiff must register its copyright within three months of publishing the work or before the infringement commences.
Where People Get Caught
Social media is where people frequently trip up and commit copyright infringement. Frequently, professional photographers will take pictures of celebrities and post them on their Instagram accounts. Often, a celebrity will see the picture and repost it to his or her own Instagram account. The celebrity mistakenly will think crediting the source is sufficient to make reposting it legal. It isn’t.
A related mistake often made is believing something found on the internet is free to use, especially if it doesn’t contain a copyright notice, which in proper form looks like this: © “[year of first publication] [name of copyright owner] All rights reserved.” For example, the copyright notice for this column is “© 2024 Leading-Edge Law Group, PLC. All rights reserved.”
Almost everything on the internet is someone’s copyright property. The lack of a copyright notice doesn’t change that, although using a notice may put the copyright owner in a better legal position in some cases. Also, copyright registration isn’t necessary for copyright ownership. However, registering a copyright early is a good idea, especially if done before or immediately after the first publication of the covered work.
Be careful because computer tools make plagiarism and copyright infringement easy to find in some situations. Universities and watchdogs have many tools available to hunt for plagiarism: TurnItIn.com is the most popular, but Copyscape.com and PlagiarismChecker.com are also used. Students can check their work for possible plagiarism with tools such as Grammarly, Scribbr, and Duplichecker. Some of these tools can find non-exact matching text, such as text paraphrased without source citation.
Similar tools are used to hunt for copyright infringements. They are most commonly used where the copyrighted material has high value and might frequently be copied, such as movies, music, and stock photos. Most infringement detection programs use algorithms, machine learning, and pattern recognition to compare to a database of copyrighted materials. In the case of stock photo agencies such as Getty Images, reverse image search and digital fingerprinting are typically used. Sometimes, plagiarism checkers find copyright infringements because literal copying without attribution can be both plagiarism and copyright infringement.
Warning About Royalty-Free Images
One final warning: Be careful with websites offering purportedly royalty-free images. Make sure you get such images from a reputable site. While this isn’t a guarantee, these sites have good reputations: Stock.Adobe.com, GettyImages.com, and IStockPhoto.com.
There are rogue sites that offer copyrighted images without permission. If you wrongfully use an image from one of the unauthorized sites, the fact that you thought you were using a royalty-free image won’t insulate you from liability.
Even if you use a legitimate royalty-free image, frequently, the terms of use require you to disclose the source of the image. I know of one case where an image-rights enforcement company threatened a copyright infringement suit over using a royalty-free image without citing the source.
So, to avoid being hit by a wrecking ball (hat tip to Miley Cyrus) of copyright infringement and plagiarism claims, be sure to get permission when necessary and give credit when due.
Written on January 17, 2024
by John B. Farmer
© Leading-Edge Law Group, PLC. All rights reserved.