To borrow a phrase ...

Jonathan Kirsch is an attorney specializing in publishing law and the author of, most recently, "A History of the End of the World: How the Most Controversial Book in the Bible Changed the Course of Western Civilization."

AT 116 pages -- and small pages at that -- Richard A. Posner’s “The Little Book of Plagiarism” is aptly titled. It’s a brief but provocative and illuminating meditation on the current craze for searching out, denouncing and punishing authors who appear to have borrowed the work of others and passed it off as their own. Ever the controversialist, Posner is willing to entertain the idea that plagiarism is hardly the high crime that moralists in the media and the academy advertise it as, and he makes a good case for the notion that copying is (and always has been) a crucial element of the creative enterprise.

Posner, a sitting federal appellate judge and a lecturer on the faculty of the University of Chicago Law School, is also a public intellectual who brings both wit and gravitas to bear on various aspects of American civilization, ranging from politics to pop culture. Many of his books are ripped from the headlines -- “An Affair of State,” for example, focused on the impeachment of President Clinton, “Breaking the Deadlock” addressed the contested presidential election of 2000 and “Preventing Surprise Attacks” pondered the lessons of Sept. 11, 2001.

“The Little Book of Plagiarism” is inspired by several recent literary scandals, starting with the Kaavya Viswanathan affair. At 17, Viswanathan was paid a $500,000 advance for a deal that included a “chick-lit novel,” but when that novel was published, attentive readers noticed that she had copied at least 13 passages from a novel by Megan McCafferty. Posner’s eye also falls on Doris Kearns Goodwin, Laurence Tribe, Alan Dershowitz and Stephen Ambrose -- all celebrated scholars who have been accused of plagiarism -- as well as on J. K. Rowling and Dan Brown, whose stratospheric bestsellers were the targets of infringement claims.


But Posner also reminds us that the roster of accused plagiarists also includes William Shakespeare, Martin Luther King Jr. and Vladimir Putin. Both Jonathan Swift and Laurence Sterne, he points out, “denounced plagiarism in words plagiarized from earlier writers.” Only recently has plagiarism been elevated to its current high visibility, and only because the availability of search engines such as Google and the mass digitization of books “[have] made it at once easier to commit and easier to detect.”

Posner insists on making a lawyerly distinction between plagiarism and copyright infringement. He defines plagiarism as “a species of intellectual fraud that consists of unauthorized copying that the copier claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him.” By contrast, copyright infringement is a highly technical legal claim that depends on what and how much of another author’s work has been copied, whether or not the actual author is credited. “[T]he law does not excuse copyright infringement, no matter how fulsome the infringer’s acknowledgment of his copying,” Posner explains, “but the acknowledgment will exonerate him of any charge of plagiarism.”

Perhaps even more fundamental is Posner’s reminder that, strictly speaking, in modern law there is no such thing as a legal claim for plagiarism. Copying might be actionable as copyright infringement or breach of contract, and it might lead to dismissal for a student who buys a canned term paper or a professor who puts his name on a student’s work, but “the most common punishments for plagiarism outside the school setting have nothing to do with law. They are disgrace, humiliation, ostracism, and other shaming penalties imposed by public opinion on people who violate social norms whether or not they are also legal norms.”

Such distinctions, however, are ultimately less interesting to Posner than the notion that the current obsession with plagiarism stands at the precise intersection of the cult of celebrity and what he calls “the cult of originality.” Indeed, he complains about “the absurd idea that ‘copying’ is inherently bad” and the “growing belief that literary, artistic, and other intellectual goods are not really ‘creative’ unless they are ‘original.’ ” Although he never condones the kind of unacknowledged quoting or paraphrasing that got Viswanathan and Kearns Goodwin in trouble, he suggests that copying the works of other authors is an old and honorable tradition.

Thus, for example, Posner points out that T.S. Eliot’s masterpiece “The Waste Land” is “a tissue of quotations (without quotation marks),” a fact that Eliot himself seems to have acknowledged when he elsewhere observed: “Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.” To illustrate Eliot’s point, Posner traces a memorable passage from “The Waste Land” (“The Chair she sat in, like a burnished throne ... “) to Shakespeare’s “Antony and Cleopatra.” He reminds us that Shakespeare borrowed and adapted this description from Sir Thomas North’s translation of the work of Plutarch.

“If this is plagiarism,” cracks Posner, “we need more plagiarism.”

Appropriately enough, Posner strikes a sober and judge-like stance. “The subject of plagiarism requires cool appraisal rather than fervid condemnation or simple apologetics,” he writes. That’s exactly what he models in “The Little Book of Plagiarism,” a healthy corrective to the public pillorying of accused plagiarists that has become something of a spectator sport. *