Defining Plagiarism

At the end of his weekly radio broadcast on January 5, 1936, Eddie Cantor made an intriguing announcement. The comedian, whose hour-long variety show was one of the most popular in the country, invited listeners to write essays of up to 500 words to answer the question “How can America stay out of war?”. Cantor declared that he would personally establish a trust fund of $5,000 to pay for the expenses of the winner, or their designee, at the college or university of their choice. Given that tuition at Harvard University was only $400 per year during the Depression, the prize would easily provide the lucky recipient with the resources to complete an undergraduate degree.

Cantor announced that the winner would be decided by the presidents of the University of Chicago, Stanford, Vassar, and the City University of New York. The chosen entry, Cantor emphasized, would be the one deemed “the most constructive, sincere, and interesting. Fancy writing or technical knowledge,” he made clear, was not a consideration. The deadline would be Washington’s birthday, which was seven weeks away, and the winner would be announced on his program in early April.¹

Not surprisingly, Cantor’s offices in New York City were soon flooded with submissions: over 212,000 had arrived by the deadline. Entrants included high school students but also college students, faculty members, and elected officials.² The entries were reviewed by Cantor’s staff, and 100 of these were passed along to the judges. During his April 5 broadcast, Cantor announced that the winner was Lloyd Lewis, a seventeen-year-old high school junior. He lived on a farm near Plattsburg, a village in northwest Missouri with a population of less than 2,000.³

Cantor arranged to have Lewis flown to New York City to accept the prize on his program. Having never traveled more than fifty miles from his family’s farm, Lewis was enthralled by the sights and sounds of the Big Apple. His story was heartwarming – but it would not have a storybook ending.

The New York Times published excerpts of Lewis’s essay, and a woman in New Jersey thought that the sentiment expressed sounded familiar. She checked and discovered that the excerpts matched an article that had been published four months earlier in Peace Digest. The original had been penned by Frank Kingdon, president of the University of Newark. The woman contacted Kingdon, who then tried, unsuccessfully, to reach Cantor. Kingdon informed a Newark newspaper, and they in turn contacted CBS and Cantor’s manager.⁴

When confronted by reporters, Lewis readily admitted to having taken his essay from the article by Kingdon. His history teacher had given Cantor’s theme to Lewis’s class as an assignment, and he copied the essay between his farm chores. Lewis claimed he didn’t understand that his entry had to be an original piece. “I thought you just were to send in the best essay you could find,” he said. Lewis added, “If I had known, I would have written one myself.”⁵

A chagrined Eddie Cantor allowed that Lewis had made an honest mistake. The following week, he awarded his scholarship to second-place finisher Owen Matthews, a nineteen-year-old Eagle Scout from Portland, Oregon.⁶

Although this episode occurred nearly ninety years ago, it’s not hard to imagine a similar story playing out today. The concepts of intellectual property and plagiarism do not come naturally to anyone: they need to be taught.

A lack of familiarity with plagiarism as a concept has arisen in the courtroom as well. Such an episode occurred during the trial in Chicago of Gerald Frank, who was charged with copying from the French painter George Barbier. A decision by the jury was delayed when one of its members admitted that they didn’t know the meaning of the word plagiarism.⁷

If we define plagiarism as the deliberate appropriation of someone else’s words and ideas without acknowledgment or compensation, then it’s fairly easy to articulate the two rules that guard against it. First, if someone wants to use the exact words of another writer, the words must be set off by quotation marks, accompanied by a citation of the original source. This can be provided via a footnote or an endnote, depending on the citation style being employed.

Second, the author can choose to paraphrase the original text. This requires the writer to restate the idea in their own words. Paraphrases don’t take quotation marks, but a citation to the original work is still required. And that’s it – that’s all that is needed to avoid plagiarism.

These two rules may seem simple enough, but as with many things, the devil is in the details. For example, how many consecutive words can be taken from an original source before a citation is required? According to the World Association of Medical Editors, “plagiarism is when six consecutive words are copied” without attribution.⁸ This seems reasonable – but almost every other single-digit number has been proposed as well. Mathieu Bouville, in his review of the issue, found sources claiming that the magic number is “two—three, four, or seven consecutive words.”⁹

A lack of consensus on this issue is problematic because simple similarity detection software might have a relatively low threshold for matching word sequences, and this can result in false positives. For example, a Google search for the phrase “The bloody three-day battle of Gettysburg” yields about 700 results, including several books, although it’s easy to imagine a student or a historian generating this six-word phrase on their own.

And issues surrounding paraphrasing are even more problematic than mere quotations. Expressing a complex idea in one’s own words is hard, which is why student writers and non-native speakers of a language struggle with rephrasing. As a result, many writers end up engaging in so-called patch writing or mosaic plagiarism. This occurs when the writer maintains the same sentence structure as in the original and simply plugs in synonyms to replace some of the terms. This practice is also called “Rogeting” because those who engage in the practice often sound like they’ve swallowed a copy of Roget’s Thesaurus.¹⁰ In this way, an ordinary phrase like “the shadowy house” might be transmogrified into an awkwardly worded equivalent such as “the obscure habitation.” In a student essay, such a phrase would be a red flag that its author is engaging in patch writing.

Plagiarism versus Originality

One way to define plagiarism would be to describe it as the opposite of originality. Instead of bringing something new into the world, the plagiarist duplicates the work of another and does so without attribution. Viewed in this way, plagiarism and originality could be thought of as binary labels, with all creative work pigeonholed into one category or the other. In practice, however, there exists a considerable degree of ambiguity. It might be better to characterize the two terms as endpoints on a continuum, and to assign other labels to cases that fall somewhere in between. People might appropriate the work of others for a variety of reasons, and some of these may not merit the scarlet letter of outright theft.

Consider, for example, the case of celebrity impersonators. In 1954, the actor Hal Holbrook created a one-man show in which he took on the persona of the elderly Mark Twain. The actor’s transformation into the humorist involved a three-hour makeup routine as well as donning a three-piece white suit, bushy mustache, and white-haired wig.¹¹ During his performances, Holbrook would dispense the humorist’s homespun wisdom in a quavering Southern drawl. After an appearance on “The Ed Sullivan Show,” Holbrook began to perform his routine, titled “Mark Twain Tonight!,” on a regular basis. He took his show to Broadway in 1966 and received an Emmy for a televised version of the routine during the following year.¹²

Was Holbrook appropriating from Twain? If so, he had plenty of company. During the 1870s and 1880s, several actors found employment impersonating the humorist, even as the real Twain was still active on the US lecture circuit.¹³ And when Holbrook created his one-man show, the humorist had been dead for over forty years. Holbrook’s performance shouldn’t be characterized as plagiarism because he wasn’t passing off Twain’s bon mots as if they were his own. Everyone in Holbrook’s audience understood that the man in the wig was channeling Twain, not stealing from him. His take on the humorist could best be described as pastiche: an affectionate tribute to the man’s memory and work.¹⁴

But in 1975, a young actor named Michael Randall went beyond pastiche by performing a one-man show he called “Mark Twain Live!”, and Holbrook sued him for plagiarism.¹⁵ His claim was that Randall was cribbing from Holbrook’s distinctive characterization of the humorist, and one that he had been honing for decades. Ultimately, the two men settled out of court: Randall was allowed to continue his performances but was forbidden to make use of Holbrook’s take on Twain.¹⁶ For Holbrook, at least, an impersonation of his impersonation was a step too far.

In comparison to pastiche, homage may not imitate the original source closely. Nevertheless, the spirit of the original may suffuse a performance to such a degree that the source of inspiration is unmistakable. The original artist may be flattered by the tribute. In other cases, however, the homage might be viewed as an infringement of the artist’s intellectual property. This was the reaction, for example, of the Belgian choreographer Anne Teresa De Keersmaeker to Beyoncé’s music video for “Countdown” in 2011.¹⁷

When artists draw on two or more sources for their creations, the resulting work can be referred to as bricolage (from the French bricoler, “to tinker,” or “do it yourself”).¹⁸ The term is most frequently used in reference to mixed media in the visual arts but can also be applied more broadly. In music and the performing arts, the result might be described as a mash-up. And this is in keeping with Beyoncé’s reply to De Keersmaeker: the singer maintained that her music video was “inspired” by artists such as “Brigitte Bardot, Andy Warhol, Twiggy, and Diana Ross” as well as by De Keersmaeker.¹⁹

Parodies are also derivative works that hew closely to an original, but in this case the intent is to satirize or to mock. It is also recognized as a form of fair use that is permitted by US copyright law. That’s not to say that parodists haven’t been taken to court, however, and we will return to this issue later in the book.

A cover version of a song, performed or recorded by a different artist, may also be quite similar to the original, and it requires negotiation between the would-be interpreter and whoever holds the work’s copyright. Typically, a licensing fee is required. In some cases, a cover version may become much more popular than the original. For example, Whitney Houston’s I Will Always Love You, recorded for a 1992 movie soundtrack, is a cover of a song written and recorded nearly twenty years earlier by Dolly Parton.²⁰ By 2022, Houston’s version had sold more than 10 million copies.²¹

But even “original” works may not be truly original. A book or a film might be based on some earlier work, with previously established characters finding themselves in a new situation – as in a sequel – or in one that predates the original, as in a prequel. Hollywood has made extensive use of this tactic, since new intellectual property may be expensive to acquire and to market.

A successful film may give rise to a multi-work franchise. This is less of a financial risk than a totally new property, as there will be a built-in audience for such familiar, if derivative, efforts. This can make good economic sense, but audiences may not always care for such warmed-over fare if taken to extremes. When sequels draw too much from earlier works, they may be criticized as mere fan service, as in Marvel’s 2019 release of Avengers: Endgame.²²

Finally, let’s consider the question of intent. In some cases, it’s easy to conclude whether similarities between creative works are the result of pastiche, homage, or appropriation. Artists are often inspired by earlier works in their medium, and they expect others to be able to discern and to celebrate these resemblances. When critics of Johannes Brahms pointed out similar motifs in his First Symphony and Beethoven’s Ninth, he is said to have growled Das sieht jeder Narr (“any fool can see that”).²³

Other cases of intent have proved to be exceptionally murky. Consider the case of a symphony completed by Austrian composer Hans Rott in 1880. Brahms’s criticism of the young man’s work is thought to have been a factor in Rott’s descent into delusions of persecution. He died of tuberculosis in a psychiatric hospital at the age of twenty-five, and his symphony went unperformed until 1989. At that time, critics noted “quotations” from Rott’s music in the symphonies of his conservatory classmate, Gustav Mahler. Mahler is known to have studied Rott’s symphonic score, and some of the resemblances are striking, but musicologists are divided about what they mean.²⁴

Some of the clues that we have are beguiling. Mahler is known to have heaped praise on Rott’s memory, describing him as “a musician of genius … who died on the very threshold of his career” and as “the founder of the new symphony as I myself understand it.” But even though he became one of the leading conductors of his day, Mahler never made an effort to see Rott’s work performed.²⁵

Had Mahler been inspired by the work of his deceased classmate? Were the musical quotations intended as a tribute to him? Did Mahler unconsciously appropriate musical ideas that lodged in his mind when he studied Rott’s score? And did he worry that a performance of Rott’s symphony would expose these appropriations – unintentional or otherwise? Or did the two composers simply draw upon the same musical influences? It’s impossible to say – but this example underscores how difficult it can be to draw conclusions when the evidence for appropriation is fragmentary.

Plagiarism or Coincidence?

A secret society. A globe-spanning conspiracy. The revelation that Jesus was married to Mary Magdalene. An individual who happens to be albino.

Some readers may recognize these plot points and details from Dan Brown’s novel The Da Vinci Code, published in 2003, or the film starring Tom Hanks and Audrey Tautou. However, these elements also appear in Sirkelens ende (“Circle’s End”), a thriller written by Norwegian author Tom Egeland and published in 2001, two years before Brown’s bestseller.

At first blush, these similarities are striking. Does this mean that Brown plagiarized from Egeland? It seems unlikely. Egeland’s novel was not translated into English – under the title Relic – until 2010, well after The Da Vinci Code was published. And Brown almost certainly did not read Sirkelens ende, as he isn’t known to be fluent in Norwegian.

In addition, despite the similarities between the two books, the main characters and the story arcs are clearly different. In Egeland’s thriller, the person with albinism is Bjørn Beltø, a professor of archeology and the story’s protagonist. In Brown’s, he is Silas, a murderous monk who plays a fairly minor role in the story. Brown’s main character is Robert Langdon, a Harvard professor who studies art and symbols. Langdon had also appeared in Brown’s previous book, Angels & Demons, which was published in 2000.

In Egeland’s story, Beltø steals and hides an ancient relic. Brown’s thriller begins with a murder at the Louvre. In Egeland’s, most of the action takes place in Norway, London, and Israel. Brown’s tale includes an interlude in London, but the story is principally set in Paris and Scotland.

In an interview, Egeland asserted that any similarities between the two books are pure coincidence, probably arising from the fact that he and Brown drew from the same sources, such as Holy Blood, Holy Grail,²⁶ a speculative work about a bloodline descended from Jesus, published in 1982. (The authors of that book did sue Brown, unsuccessfully, for copyright infringement.²⁷) As it happens, Egeland made clear he was grateful for Brown’s book, because it raised the visibility of his own novel.²⁸

The human mind excels at detecting patterns, and it strains to do so even when there is no pattern to be found. We also tend to view coincidences with suspicion and assume there must be some underlying connection to explain them. This predilection serves us well most of the time, but it can also cause us to suspect appropriation when it is unwarranted. Coincidences, it seems, may be more common than we would think.

The New York Times, in its “Saturday Review of Books” on July 10, 1909, compared two recently published novels that possessed uncanny similarities. One was By Their Fruits, written by Australian-born novelist Rosa Campbell Praed. The other was Michael Thwaite’s Wife by American author Miriam Michelson. Published about six months apart, their overall theme, plot points, and main characters were noted to be “almost identical.”

Both novels are about twin sisters, one of whom represents goodness while the other embodies evil. And in both, the evil twin marries and then is ultimately replaced by the good twin. The reviewer concludes:

Or consider the case of British author William Golding. On the eve of Golding’s receipt of the Nobel Prize in Literature in 1984, journalist Auberon Waugh published an article in The Spectator, a British weekly, about Golding’s best-known novel. Waugh claimed that there were striking similarities between Golding’s Lord of the Flies, published in 1954, and British writer W. L. George’s Children of the Morning, which had been published nearly thirty years earlier, in 1926.

In both stories, children are marooned on a desert island. There is conflict as they split into groups. In both, a red-headed bully emerges as a leader. There is a fire. And in both, the story ends with the appearance of a navy cruiser – an American ship in George’s story, and a British one in Golding’s.

Waugh didn’t accuse Golding of having deliberately plagiarized from George. Instead, he theorized that Golding had read George’s story in his youth – he would have been fifteen when Children of the Morning was published – and that George’s story had “an extraordinary subliminal effect on him.” Waugh suggested that Golding should offer George’s descendants a token of his appreciation, such as “a tin of pickled herrings,” after he returned from the ceremony in Sweden.³⁰

Golding was forced to defend himself from his hotel room in Stockholm. He told reporters that:

He continued, in a pricklier vein, with “I was awarded the Nobel Prize for a literary career which contains nine novels, not one.” Golding’s defensiveness is not surprising, as many critics, particularly those in the US, had been critical of the Swedish Academy’s choice.³²

Coincidental similarities also show up in places besides novels. In the world of comics, we have the curious case of Hairbutt and Hip Flask. Both creatures are anthropomorphic hippopotami, and both happen to be private detectives. Hairbutt the Hippo debuted in 1991, the brainchild of Australians Jason Paulos and Amerikah Bodine. Hip Flask appeared four years later, in 1995, and was the creation of British font designer Richard Starkings.

In 2001, when Bodine became aware of Hip Flask’s existence, she accused Starkings of plagiarism. Given the remarkable degree of overlap – humanoid hippo private eyes – it’s not surprising that Bodine assumed the worst. Starkings, however, protested that he was unaware of Hairbutt until 1998, when the character was brought to his attention by a reporter. At that point, he tried to differentiate the characters and dropped Hip Flask’s private detective persona. Starkings has maintained that the similarities were “just a bizarre coincidence.”³³

As a final example, this time drawn from the world of music, consider the case of Tom Petty and Sam Smith. In 1989, Petty had a hit with “I Won’t Back Down,” released as a single from his “Full Moon River” album. And in 2014, Sam Smith released a song called “Stay with Me” on his first studio album. A cover version of Smith’s song by Darkchild would go on to win a Grammy for Song of the Year in 2015.

Petty’s publisher, however, noted similarities between the melodies and choruses of the two songs and contacted representatives for Smith. Although Smith claimed not to be familiar with “I Won’t Back Down,” he did admit that there was a resemblance, which he attributed to “a complete coincidence.”³⁴

Petty, for his part, was understanding, saying “All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by.”³⁵ The two sides quickly came to an amicable settlement: Petty and his co-writer Jeff Lynne accepted Smith’s offer of songwriting credits and 12.5% of the royalties from “Stay with Me.”³⁶

Origins

The concept of plagiarism existed in classic antiquity, although it was not referred to by that term. The scholars of ancient Greece made use of words like κλοπή (“theft”) and κλέπτειγ (“steal”) to refer to the idea of literary appropriation.

Some of the targets of these accusations may be surprising. Aristoxenus of Tarentum, a philosopher of the fourth century bce, accused Plato of cribbing most of The Republic from the writings of Protagoras. Aristoxenus’s contemporary Alcinus claimed that Plato “borrowed heavily from Epicharmus, using his very words.”³⁷ And a number of early Christians, such as Justin Martyr, accused Plato of copying Moses.³⁸

During the second century ce, in a treatise titled The True Word, the Greek philosopher Celsus charged that Jesus had plagiarized his teachings from the writings of Plato. Although Celsus’s treatise did not survive antiquity, we know about it through a refutation written by Origen of Alexandria, a third-century Christian scholar. (Origen’s work, Contra Celsus, contains quotations that are extensive enough to allow a reconstruction of Celsus’s arguments.³⁹)

The concept of literary appropriation was exported from ancient Greece to the Roman Republic. We see references to this concept by Terrence in the second century bce and then by Cicero, Horace, and Pliny the Elder. To refer to appropriation, they employed Latin terms that were equivalent to those in Greek, such as furtum (“theft”) or surripere (“to steal”). For example, Horace criticized a fellow poet for making himself beautiful with “stolen feathers.”⁴⁰

The first use of the term “plagiarism” in reference to literary theft is found in the writings of Martial, who lived during the first century ce. He is best known for his epigrams – terse, witty, and often acerbic observations about daily life in Imperial Rome. At one point, Martial discovered that Fidentis, a fellow poet, was reciting Martial’s work as if it were his own.⁴¹ In pleading with Quintianus, his patron, to intervene, Martial wrote:

Martial was metaphorically equating the thieving poet with a plagiario: that is, someone who kidnaps slaves or children. In thinking about his literary creations in this way, Martial might have been influenced by Ovid, who had likened the works of authors to their own children.⁴³

After the collapse of the Western Roman Empire, concerns about literary plagiarism largely disappeared from European letters.⁴⁴ The focus shifted to the reshaping and refashioning of the work of earlier writers. The Dionysian notion of imitatio reigned supreme. In this context, copying was seen as a virtue, and it was originality that was suspect.

Chaucer, Shakespeare, and Franklin

If we examine the work of three authors, writing in the fourteenth, sixteenth, and eighteenth centuries, we can see that attitudes about appropriation were largely unchanging over this long period. Geoffrey Chaucer, considered the father of English literature, borrowed from writers of antiquity, such as Virgil, Ovid, and Boethius, as well as Dante and his near-contemporaries Petrarch and Giovanni Boccaccio. In some cases, he only recycled characters, plots, themes, or structures, but in others this appropriation was more direct. As Sherry Reames has pointed out, the “Second Nun’s Tale” in The Canterbury Tales “bears an unusually close relationship to its sources. Every important detail in the narrative, and indeed almost every sentence, is paralleled in the Latin versions of the Cecilia legend.”⁴⁵ The sources and analogues for Chaucer’s work in general,⁴⁶ and The Canterbury Tales in particular,⁴⁷ have been extensively documented.

In one case, Chaucer took the notion of imitatio a step further. When he penned his epic poem Troilus and Criseyde in the 1380s, he relied heavily on Boccaccio’s Il Filostrato but apparently felt compelled to attribute his material to a classical source. He refers to a “Lollius,” although scholars have been unable to identify any author with that name. The modern consensus is that Lollius “is no more than a literary phantasm, a friend of Horace transformed by a medieval misreading into the author of a lost work on the Trojan war.”⁴⁸ Technically, this makes Chaucer a fabricator as opposed to an appropriator. He may have been one of the first authors in English to make up a source – but he would not be the last.

Writing 200 years after Chaucer, Shakespeare also drew from Ovid and Boccaccio, as well as from a variety of other sources, such as Holinshed’s Chronicles and Chaucer himself. Shakespeare and Fletcher’s Two Noble Kinsmen, for example, is essentially a reinterpretation of “The Knight’s Tale.”⁴⁹

But none of this was considered unacceptable when Chaucer and Shakespeare were creating their works, and it is never characterized as plagiarism by scholars today. Instead, words like “source,” or “borrowing,” or “inspiration” are used. The prevailing attitude was that the works of other authors were fair game, as long as one improved on the original.

This can be clearly seen in Shakespeare’s Antony and Cleopatra. For his play, the bard paraphrased from Thomas North’s translation of Plutarch’s Life of Antony’s description of Cleopatra and her barge. Shakespeare’s version is vastly superior; as Richard Posner observed, “If this is plagiarism, then we need more plagiarism.”⁵⁰

Let us make a third and final jump forward in time, to 1732 and the American colonies. At the end of that year, Benjamin Franklin published a slender volume entitled An Almanack for the Year of Christ 1733. Franklin was a twenty-six-year-old printer who had taken over The Pennsylvania Gazette three years earlier and chose to publish this new venture using the pseudonym of Richard Saunders. Poor Richard’s Almanack, as it came to be known, would appear annually for the next twenty-five years and proved to be exceptionally popular. Like other almanacs of the era, Poor Richard contained information on a variety of topics, such as weather forecasts, tables of tides, astronomical information, recipes, and poetic verse, but also proverbs and aphorisms. These terse and often cynical adages often appeared as filler at the end of a column of text. Many of them are still familiar:

• “Fish and visitors stink in three days.” (1736)

• “Don’t throw stones at your neighbours, if your own windows are glass.” (1736)

• “God helps them that help themselves.” (1736)

• “Haste makes waste.” (1753)

• “Early to bed and early to rise makes a man healthy, wealthy, and wise.” (1757)

Today, Franklin’s sterling reputation rests principally upon his roles as a founding father to his nation and his work as a scientist and inventor. And the wit and wisdom of Poor Richard seemingly allows him to lay claim to the title of champion wordsmith as well. But does he deserve that distinction?

Franklin’s printing enterprises flourished, and he retired fifteen years after establishing Poor Richard, giving him more time to pursue his manifold interests. However, he continued to compose the prefaces for the yearly editions of the almanac until 1757. In the final edition, “Richard Saunders” admitted that “not a tenth part of the wisdom was my own … but rather the gleanings I had made of the sense of all ages and nations.”⁵¹

Although scholars like Carl Van Doren suspected that Franklin drew from writers like Dryden, Swift, and Rabelais,⁵² the requisite heavy lifting – tracking down the exact sources – was performed by Robert Newcomb, in research for his 1957 dissertation. He found that Franklin had mined many different authors, but most of Poor Richard’s axioms came from the historian James Howell, physician Thomas Fuller, and the poet George Herbert. Franklin also drew from a posthumous work by the politician George Savile (Lord Halifax), Samuel Richardson, and French authors François de La Rochefoucauld and Michel de Montaigne.⁵³

During Franklin’s lifetime, publishers in Britain and the colonies habitually republished the work of others without attribution or compensation. Franklin was no better – but no different – from the others of his time. And as with Shakespeare, Franklin frequently improved on what he appropriated. As J. A. Leo Lemay describes it, Franklin would simplify and clarify. Whereas the originals were often formal and somewhat clunky, Franklin’s renderings are vigorous and direct. For example, Ray’s Collection of English Proverbs, from 1678, includes the adage “God restoreth health, and the physician hath the thanks.” Franklin absconded with this sentiment but rendered it in Poor Richard as “God heals and the doctor takes the fee” (1736).⁵⁴

The Modern View Emerges

We see the first stirrings of a new attitude about originality at the beginning of the sixteenth century. When the Italian engraver Marcantonio Raimondi started copying the woodcuts of Albrecht Dürer – including his unique AD monogram – the German artist lodged a complaint with the Venetian government. Dürer’s action is one of the earliest examples of what we would now call a copyright infringement lawsuit. Unfortunately for Dürer, the courts only prohibited Raimondi from copying the monogram: he was still free to reproduce and sell copies of Dürer’s work. In modern parlance, Dürer retained his trademark, but his art was considered to be in the public domain.⁵⁵ (In a kind of karmic justice, however, Raimondi was later imprisoned for his reproductions of erotic images.⁵⁶)

The terms “plagiarism,” “plagiarize,” and “plagiarist” all made their debuts in the English language during the 1600s, although the first such form to be used – “plagiary,” dating from 1598 – is now obsolete.

The last quarter of the 1600s witnessed a reawakening of interest in the concept of plagiarism. In 1673, the German philosopher Jakob Thomasius published Dissertatio philosophica de plagio literario, in which he argued that appropriation without attribution was morally wrong and equivalent to theft. Works like Van Almeloveen’s Plagiariorum Syllabus of 1694 provided a catalog of appropriations by earlier Continental authors.⁵⁷ And Gerard Langbaine’s Momus Triumphans – published in 1687 – performed the same service for literary texts written in English.⁵⁸

At the same time, the meaning of the term “plagiarism” in English was shifting. Before about 1700, it referred to what is now called literary piracy, which is the unauthorized reproduction and selling of someone else’s writing. Beginning in the eighteenth century, “plagiarism” was used in its modern sense, to refer to appropriation without attribution.⁵⁹

It would be another century, however, before originality was truly seen as a virtue. It was during the Romantic period that artists came to be idolized, and this adoration raised them far above their station as mere craftspeople – which was how they had been regarded in the past. By the early nineteenth century, there were several authors who were able to support themselves solely by their writing. In America, these included Washington Irving, James Fenimore Cooper, and Edgar Allan Poe (albeit precariously). And in England, a similar list included William Makepeace Thackeray, George Eliot, and Charles Dickens. Dickens deserves special mention here, because his work was plagiarized on many occasions during his career.

Dickens’s novels, incredibly popular from the start of his career, were serialized: that is, they initially appeared in weekly or monthly installments in popular magazines. For the monthly publications, it would take about a year and a half for an entire tale to appear in print. This provided an opening for unscrupulous publishers to capitalize on the public’s interest – and impatience – to learn more about the Pickwick Club, Oliver Twist, or Nicholas Nickleby.

Dickens’s most notorious bête noire was Edward Lloyd, a bookseller who also ran a literary sweatshop, paying writers a pittance to churn out serialized titles with fake titles like The Penny Pickwick, Pickwick in America, Oliver Twiss, and Nickelas Nickelbery.⁶⁰ Even worse, these weren’t only knock-offs: Lloyd also undercut Dickens on price. The author was outraged, but the domestic copyright laws of his time were toothless, and the appropriation continued. Dickens was also popular in the US, but he received no royalties from the thousands of copies of his books that were sold there. It became clear to Dickens that it would take new laws to protect his livelihood.

In 1842, the author traveled to America to give readings of his works. He also took the opportunity to argue for an international copyright law that would protect his intellectual property outside of Britain. Dickens was surprised, and saddened, to discover that his entreaties largely fell on deaf ears. Americans liked their cheap pirated editions and resented his hectoring them about a moral obligation to provide authors with compensation.⁶¹

Dickens wasn’t the only one to suffer from American indifference regarding the rights of foreign authors. A generation later, US publishers were busily churning out bootleg editions of the Encyclopædia Britannica. Charles Scribner’s Sons, the authorized US publisher of the work, brought suit against Joseph Stoddart, a Philadelphia publisher who offered a pirated edition that was much cheaper than the legitimate version.

In 1879, when the case was heard by the Supreme Court, Justice Arthur Blair saw no problem with Stoddart’s actions. He claimed that “To reproduce a foreign publication is not wrong. There may be a difference of opinion about the morality of republishing here a work that is copyrighted abroad, but the public policy of this country as respects the subject is in favor of such republication.”⁶² Stoddart’s opinion, however, would not be the last word on this subject.

Allegations of plagiarism have resulted in controversies involving popular books and television shows, extended bouts of litigation involving the famous and the not-so-famous, and even public brawls. The following sections of this chapter provide a sampling of these disputes.

The Slap Heard ’round the World

At the 94th Academy Awards ceremony on March 27, 2022, comedian Chris Rock took to the stage to announce the award for the best documentary feature film. It was during those remarks that Rock made a joke at Jada Pinkett’s expense. Her husband, actor Will Smith, marched up to the comedian and slapped him across the face on live TV. It was described by several media outlets as “The slap heard ’round the world.”⁶³ But it wasn’t the first time that this variation on Emerson’s famous line had been used to describe a public wallop. The phrase had been employed ninety-one years earlier to describe another famous altercation – one that involved an accusation of plagiarism.

The principals in this earlier episode were Dorothy Thompson, Theodore Dreiser, and Sinclair Lewis. Literary feuds are not uncommon – famous writers have big egos – but this one escalated to a donnybrook that had eerie similarities to the later incident in Hollywood.

In 1927, a group of Americans was given a tour of Russia by the Soviet regime. The party included Thompson, a journalist who was head of the Berlin bureau of the New York Evening Post, and Dreiser, the novelist and avowed socialist. Based on her trip, Thompson published a series of articles about the new Soviet state in the Post, and these were collected into her 1928 book The New Russia. A month later, Dreiser also published an account of their tour, in the book Dreiser Looks at Russia. Thompson accused Dreiser of plagiarizing her articles “almost word for word” and threatened to sue him.⁶⁴ Dreiser made the improbable suggestion that she must have taken his notes from his Berlin hotel room.⁶⁵

Earlier in 1928, Thompson had married the novelist Sinclair Lewis, who was awarded the Nobel Prize in Literature two years later. Dreiser, who was fourteen years Lewis’s senior, had also been one of the finalists, and was widely seen as Lewis’s primary competitor for that honor. There is no question that Dreiser was deeply disappointed at not getting the nod: one of his friends described him as “almost suicidal.” Some believed that Lewis bested Dreiser only through “clever maneuvering,” such as by making sure that his books were translated and published in Swedish.⁶⁶

In March 1931, three months after the Nobels were awarded in Stockholm, a formal dinner was held at New York City’s Metropolitan Club. The gathering was organized to honor the Russian novelist Boris Pilnyak. About thirty writers and critics were present for an evening of food, speeches, and cigars, and the gathering included both Lewis and Dreiser. At one point, host Ray Long called upon Lewis to speak, but he demurred. Instead, he said “I am very happy to meet Mr. Pilnyak. But I do not care to speak in the presence of one man who has plagiarized three thousand words from my wife’s book on Russia.” After an uncomfortable interval, several other attendees made remarks, and the incident seemed to be forgotten.

At the end of the evening, however, as the attendees were leaving, Dreiser and Lewis were seen talking together. Accounts vary, but Dreiser reportedly called Lewis a liar and a cheat. He then dared Lewis to repeat his allegation about plagiarism. When he did, Dreiser slapped him hard across the face. Lewis said it again and received a second strong blow. At that point, the two men were physically separated to prevent the episode from escalating. Afterwards, Lewis claimed he hadn’t struck back only because he was forcibly restrained and said that he stood by his accusation.⁶⁷

The bad blood between the two men continued. A week after the slapping episode, Dreiser claimed that he had been invited to pen the story of Arrowsmith before Lewis had. When asked about the assertion, Lewis was dumbfounded. He asked Paul de Kruif, the microbiologist who had assisted him with the novel, to help in refuting Dreiser’s calumny.⁶⁸

But had Dreiser truly cribbed from Dorothy Thompson’s articles? The evidence is equivocal. At the time of Thompson’s accusation, the newspaper columnist Franklin P. Adams reviewed both books and concluded there was a high degree of “verbal similarity” between them.⁶⁹ But in 1963, James Donald Adams, The New York Times book review editor and columnist, recalled sitting next to Lewis during the infamous dinner thirty years earlier. He opined that both Thompson and Dreiser “had drawn on the same news hand-out in Russia.”⁷⁰ It’s at least possible, therefore, that the similarities were the result of two writers mining the same source material.

As a final point of consideration, it’s worth noting that Dreiser had been credibly accused of literary theft on three earlier occasions. He was alleged to have borrowed part of a fable by George Ade for his first book, Sister Carrie, published in 1900.⁷¹ His 1925 novel, An American Tragedy, was criticized for directly incorporating material from court records and news articles without attribution. And two years before Thompson’s claim, his poem “The Beautiful” was said to have nicked part of “Tandy,” a story written by his friend Sherwood Anderson.⁷² These earlier thefts don’t mean that Dreiser was also guilty of borrowing from Thompson, but his history suggests that it wouldn’t have been totally out of character for him.

Deeks v. Wells

A case of alleged plagiarism from the 1930s illustrates how difficult it can be to litigate a charge of appropriation against a well-known public figure.

In 1919, H. G. Wells began publishing The Outline of History, an illustrated story of humanity, from prehistory through the Great War. The work’s forty chapters were serialized over the course of a year, then published together in two volumes comprising 1,300 pages. The prolific Wells, then in his early fifties, was still writing the speculative fiction he had become known for, such as The Invisible Man and The War of the Worlds. But he had also started publishing works on politics and sociological issues, as well as prophecies about the future.

Wells wasn’t a historian: he had studied biology and zoology but was largely self-taught in other disciplines. Not surprisingly, therefore, his grand synthesis was criticized by professional historians, some of whom described it as “quite muddle-headed,” “misleading,” and “silly.”⁷³ However, it was Wells’s support for socialism and his acceptance of Darwin’s theory of evolution that rankled many readers, especially those in the US. Even though Wells was writing sixty years after the publication of On the Origin of Species, the adoption of his Outline as a college textbook in Kansas proved to be controversial.⁷⁴ The book met with an even chillier reception in Tennessee, where the state legislature banned it from public libraries in 1925.⁷⁵

In Canada, the book was read with great interest by a former college teacher and journalist. Florence Deeks of Toronto became aware of Wells’s Outline in late 1920, when she read a glowing review in the magazine Saturday Night. She immediately purchased a copy – and was horrified. Deeks had spent the years of World War I laboring over her own history of the world, with the goal of putting the role of women into proper perspective. She submitted her manuscript, titled The Web of the World’s Romance, to Macmillan of Canada in July 1918, but heard nothing from the company for nine months. At that point, she was informed it had been rejected, and she retrieved her manuscript.

Upon reading the Outline, Deeks unwrapped the copy of her typescript that Macmillan had rejected. She found evidence that it had been handled extensively. Some pages were creased and others had been dog-eared. And as she carefully compared her Web to the Outline, she became convinced that Wells had plagiarized from her typescript.

Deeks spent many months meticulously documenting the pattern of similarities that she found. Overall, the plan of the two works was the same, although Wells had dispensed with her emphasis on women’s place in history. In many instances, she found similar words arranged in the same sequence. In addition, several historians compared the works at her request, and they reported similar omissions and, in some cases, even the same errors in both.⁷⁶

Wells had written his Outline, consisting of some 400,000 words, in only nine months – an astonishing feat. However, this timeline is plausible because he was known to be a prodigious writer who relied on his wife Catherine to turn his longhand scrawls into clean typescript. And the title page of the Outline listed four eminent scholars whom Wells had relied on for “advice and editorial help.”⁷⁷ Despite the criticism from other professional historians and from politicians, the book became a bestseller: over the next decade, more than two million copies went into print, and the royalties made Wells a wealthy man.⁷⁸

In 1925, Deeks initiated a lawsuit against Wells and Macmillan, in which she sought a half million dollars in damages from the defendants.⁷⁹ However, it would take nearly five years for the case to be heard in court, as both sides made changes in their legal counsel.⁸⁰ For his part, Wells strenuously denied ever having seen the manuscript of Deeks’s book, much less using it as a plan for his own.

The trial finally began in June of 1930. Deeks’s counsel needed to convince the Honorable William E. Raney that the similarities between the two books were not mere coincidence, and that Macmillan of Canada had sent her manuscript to England, where Wells made use of it for his Outline. The plaintiffs called three historians as expert witnesses to buttress the first part of their case, and the defense called on one of their own.⁸¹

Some evidence did support the plaintiff’s claims. John Saul, the Macmillan employee who took receipt of Deeks’s manuscript, had at one point told a golfing buddy that the typescript was sent to New York and then on to England, although he later said that it had never left Toronto. Wells’s panel of experts, cited on the title page, had conducted no research for the book and wrote none of the Outline: they served as little more than consultants. And Wells never produced the longhand original of his manuscript, but only a typescript of his book. Catherine Wells, who had typed the work for her husband, would have been able to provide details about the workflow, but she had passed away three years before the trial began.⁸²

It’s worth noting that Wells had been accused of plagiarism previously. His 1895 novel, The Wonderful Visit, was noted to have similarities with Grant Allen’s The British Barbarians.⁸³ And in 1901, the Irish novelist Robert Cromie accused Wells of “practically lift[ing] the first nine chapters” of his 1890 book, A Plunge into Space, for The First Men in the Moon. Wells, for his part, said he had never heard of Cromie or his book.⁸⁴

After hearing the arguments made by attorneys on both sides, Judge Raney ruled that the case be dismissed. He concluded there was no evidence that the Web manuscript had found its way abroad. The plaintiff was also held responsible for costs. Raney referred to Deeks’s quest for justice as an “obsession,” and claimed that “this action ought not to have been brought.”⁸⁵ Deeks was disappointed by the outcome but undeterred. She chose to represent herself at an appeal to the Ontario Supreme Court in May of 1931, pleading her case before four judges. But this too was unsuccessful.⁸⁶

Deeks turned to the British courts for redress, again serving as her own counsel. At the end of the October 1932 trial before three judges of the Judicial Committee of the Privy Council (JCPC), she was told for a third time that she had not convinced the court. It was pointed out that collections of historical facts will inevitably have similarities, but that this is not proof of appropriation. “Neither Miss Deeks nor Mr. Wells was present at the beginning of the world,” she was told.⁸⁷

Convinced of the righteousness of her cause, Deeks appealed to the JCPC for a rehearing, but her request was denied. In April of 1933, she petitioned her sovereign, King George V, and then the secretary of state for the Home Office, who pronounced her entreaty “frivolous.” As a final Hail Mary, she sent a personal letter to the King in May of 1933, again to no avail. After nearly a decade of tilting at windmills, Florence Deeks had exhausted her legal options.

For his part, Wells seemed primarily concerned with the cost of the litigation. A report published after the British trial claimed that Wells had spent $10,250 defending himself – which would be over $200,000 today.⁸⁸

For decades, Deeks v. Wells was little remembered, but a 2000 book by historian A. B. McKillop revived interest in the case. Written as narrative nonfiction, it paints a sympathetic portrait of Deeks as a courageous David doing battle against Macmillan and Wells’s Goliath. Wells is depicted, not inaccurately, as a dissolute, self-indulgent libertine. McKillop even suggests that Sir Richard Gregory, an astronomer with close ties to Wells, his lifelong friend, and to Macmillan, could have served as the critical conduit for delivering Deeks’s manuscript. And McKillop points out, more than once, that the sexist attitudes of the era – in both society and the courts – helped to make Deeks’s quest for justice a quixotic one.

But are those the right conclusions to draw? McKillop had interpreted the Deeks case through a historical lens. Law professor Denis Magnusson’s take was somewhat different. His 2004 article makes the crucial point that the case and subsequent appeals were heard by judges and not by a jury. Judges would be inclined to require a higher standard of proof regarding infringement: similarities that could sway a jury might be insufficient for those conversant with copyright law. Judge Raney found no paragraphs or even sentences that were the same in both works, and historical facts and information are not protected by copyright.

In addition, without tangible proof of Deeks’s manuscript leaving Macmillan’s custody, it becomes difficult to argue that it was ever seen by Wells. Magnusson concludes that, given the lack of evidence of substantial similarity or access, Deeks’s argument was weak and the case was decided correctly. Finally, Magnusson found no evidence that sexism played a major role in the outcome. Canadian society was undoubtedly more sexist a century ago than it is today, but this seems to have had no bearing on either the length of the Deeks’s trials or the written decisions.⁸⁹

Gone with the Wind

Margaret Mitchell’s Gone with the Wind has been controversial – and tremendously popular – since its publication in 1936. The thousand-page novel, which took the Atlanta native ten years to write, garnered Mitchell the Pulitzer Prize for Fiction. And the 1939 film version, starring Vivien Leigh and Clark Gable, has become iconic. But Mitchell was also accused of plagiarism, and disputes over the book’s intellectual property have continued into the twenty-first century.

A few months after Wind’s publication, Susan Lawrence Davis filed suit against Macmillan, Mitchell’s publisher, for copyright infringement. A dozen years earlier, Davis had released Authentic History of the Ku Klux Klan, 1865–1877.⁹⁰ The Alabama native had based her book on material provided by her father and others involved in the foundation of the Klan. Davis asked for an eye-popping $6.5 billion in damages, claiming that Mitchell had incorporated “whole pages” from her book, as well as historical information and terms such as “carpetbagger” and “scalawag.”⁹¹

Mitchell, in responding to the suit, claimed to have never heard of Davis’s book until the suit was brought. Davis sought an out-of-court settlement, but Macmillan refused to cooperate. Both Mitchell and her publisher felt that the publicity of a court trial would be helpful for Wind’s sales.⁹² The case was heard by Judge Henry W. Goddard, who dismissed the suit in July 1937. He pointed out that the Klan history contained “no plot or story,” and facts about the Civil War and its aftermath were in the public domain.⁹³

Later that year, Mitchell was herself the plaintiff in a case brought against theatrical producer Billy Rose. She claimed infringement based on a musical number that had been staged at the Fort Worth Frontier Fiesta. Rose initially claimed that his revue wasn’t based on Mitchell’s novel. In response to the suit, he said, “We have a Southern plantation. There have been Southern plantations before. We burn a house, but houses were burned before Margaret Mitchell was born. The rest is music and dancing.”⁹⁴ Six months later, however, Rose had a change of heart and decided to settle out of court. He sent Mitchell a letter of apology and $3,000 – about $65,000 today – as compensation.⁹⁵

Tragically, Margaret Mitchell was struck and fatally injured by a drunk driver in 1949. She was only forty-eight years old when she died. Her husband, John Marsh, passed away three years later, and the rights to Mitchell’s novel passed to her brother, Stephens Mitchell. When Stephens passed away in 1983, the estate was inherited by his sons, Eugene and Joseph Mitchell.

Anticipating – and fearing – the expiration of the book’s copyright in 2011, the heirs made the controversial decision to authorize a sequel to Mitchell’s novel.⁹⁶ The author they chose was Alexandra Ripley, who had previously written historical novels set in the South.⁹⁷ Scarlett: The Sequel to Margaret Mitchell’s ‘Gone with the Wind’, was published in 1991. Ripley’s book was panned by some critics, with The New York Times describing it as “disastrous.”⁹⁸ Nevertheless, it became a bestseller. Another authorized sequel, Rhett Butler’s People by Donald McCraig, met with a friendlier reception in 2007.⁹⁹

The creators of unauthorized works based on Gone with the Wind have faced vigorous legal challenges from Mitchell’s estate, although the heirs’ track record has been mixed at best. They were successful, for example, in preventing a theater in Atlanta from mounting a stage production titled Scarlett Fever. Its creators described the 1979 play as a spoof or parody, but a district court found that the production hewed too closely to Mitchell’s novel and the MGM film. As a derivative work, it infringed on the book’s copyright. The court ruled for the plaintiffs, granting an injunction against performances of the play.¹⁰⁰

Soon after the successful litigation of Scarlett Fever, a new threat to Mitchell’s legacy materialized. In 1982, French author Régine Deforges published a novel titled La Bicyclette bleue. The author was sued by the American Trust Bank, holders of Mitchell’s world rights, because of the novel’s substantial similarity, in its first seventy pages, to Wind. Deforges herself freely admitted taking her inspiration from Mitchell’s novel. The plaintiffs sought five million francs – more than $2 million today – from the author. Initially, a French court sided with the plaintiffs: the trial judge declared Deforges’s work to be “an illicit reproduction,” although damages were reduced to two million francs (more than $800,000).¹⁰¹ However, Deforges appealed the ruling, and the judgment was reversed a year later. In a striking contrast to the original decision, the appeals court described Deforges’s work as “an original intellectual creation.”¹⁰² The novel would eventually sell millions of copies in France.

Finally, in 2001, the country music songwriter Alice Randall created a stir with her novel The Wind Done Gone, a story set in Mitchell’s world but told from the point of view of the plantation’s enslaved men and women. In March of that year, lawyers for the Mitchell estate sought an injunction to block Houghton Mifflin, Randall’s publisher, from releasing the book. The estate characterized Randall’s novel as an unauthorized sequel, with fifteen characters in common, as opposed to a parody, which would have been considered fair use. The injunction was granted.¹⁰³ However, Houghton Mifflin appealed and had the injunction overturned.¹⁰⁴ And in May, the estate settled the case, requesting that a donation be made by the publisher to Morehouse College.¹⁰⁵ All of the legal wrangling raised the visibility of Randall’s book, and initial sales were brisk.¹⁰⁶ Each copy of the novel bore a prominent red seal labeling it as “An Unauthorized Parody.”

We live in a world that has become balkanized with regard to copyright status, and this has affected Mitchell’s legacy as well. Due to a revision in US copyright law, ninety-five years must elapse before a book enters the public domain. As a result, protection for Wind has been extended until 2032. In the European Union, however, the rule is seventy years after the author’s death, and Wind lost its copyright protection in those countries in 2020.

And in Australia, Mitchell’s novel entered the public domain in 1999, as that country’s protection extends for only fifty years after the death of the author.¹⁰⁷ As a result, an unauthorized sequel titled The Winds of Tara, written by Texas author Katherine Pinotti, cannot be legally published or purchased in the US – but no restrictions exist Down Under, where the novel was released by Fontaine Press. (At the time of this writing, copies of the 400-page paperback can be found on eBay starting at $170.)

“Have Gun, Will Travel”

For an example of how difficult it can be to accuse a large corporation of plagiarism, consider the case of Victor DeCosta. He was quite a character – literally. Born in Massachusetts in 1908, he worked as a cowboy and rodeo rider in Texas in his younger days. He eventually moved to Rhode Island, became a heavy equipment mechanic, and had five children.¹⁰⁸ But he never lost his love for the Wild West.

Starting in 1947, DeCosta began making appearances at parades, horse shows, and charities. Riding a black stallion, he dressed in black cowboy attire and sported a rakish mustache. His costume included a gun holster emblazoned with a silver knight chess piece.¹⁰⁹ At one of his events, someone in the crowd shouted “paladino” at him. DeCosta liked the term, which means “champion” in Italian. He adopted the English form of the name, Paladin, as his moniker.¹¹⁰ Over the years, DeCosta distributed tens of thousands of business cards that featured the knight piece. Each bore the words “Have Gun Will Travel, Wire Paladin,” followed by a post office box number in Rhode Island.

In September of 1957, ten years after DeCosta created his persona, CBS began airing a Western called “Have Gun – Will Travel.” The series was a hit for the network and 225 episodes were produced over six seasons. Richard Boone starred as a character named Paladin, a West Point graduate and cavalry veteran of the Civil War. Paladin found employment by taking on clients seeking a private investigator, an expert gunslinger – or both.

Each episode of “Have Gun” began with a close-up of the holster of Paladin’s Colt single-action Army revolver, emblazoned with the figure of a chess knight in platinum. Paladin dressed in black and sported a mustache. He drummed up business by passing out calling cards that featured the knight piece and the words “Have Gun Will Travel, Wire Paladin, San Francisco.”¹¹¹

DeCosta was unaware of his televised doppelgänger until a family dinner in the fall of 1957, when a sibling mentioned that they had seen Victor on a program the night before. Astonished, DeCosta made a point of tuning in to “Have Gun” the following Saturday and was astounded. He immediately began to seek legal representation.

Screenwriters Herb Meadow and Sam Rolfe, the creators of “Have Gun,” maintained they had come up with the Paladin character on their own. They claimed to have never visited the parts of New England where DeCosta made his appearances. And the business card’s motto? Meadow and Rolfe said it was derived from “Have tux, will travel,” a showbiz saying that had been circulating for years,¹¹² and one used as a title by Bob Hope for a book he published in 1954.¹¹³ Any similarities between the television character and DeCosta’s alter ego, the network claimed, were accidental and coincidental.

Because DeCosta hadn’t copyrighted his character or his cards, he chose to sue CBS for misappropriation. His case, however, wasn’t heard until almost a decade later, in 1966. A jury found for the plaintiff and awarded DeCosta $150,000 ($1.4 million today). CBS appealed the decision, and an appeals court set aside the verdict two months later. Even though there was evidence of appropriation, the appeals court concluded that DeCosta’s “pure” character had never appeared in an incorporated work. As a result, the law didn’t provide him any protection.¹¹⁴ In addition, DeCosta couldn’t prove financial damages, since he had never charged for his appearances as Paladin.¹¹⁵ The case was appealed to the Supreme Court, but the justices declined to review it.¹¹⁶

A few years later, DeCosta took another run at CBS by alleging that the network had infringed on his character’s trademark. Once again, he was successful in the initial trial: the judge found that the defendants had “intentionally misappropriated the property of the plaintiff.”¹¹⁷ But a year later, an appeals court overturned the lower court’s ruling. Trademark infringement, the appeals court declared in 1975, requires confusion on the part of the public. The chief judge ruled that the plaintiff had failed to demonstrate “that the public had been deceived.”¹¹⁸

A third round of litigation occurred in the early 1990s. In 1977, DeCosta registered for trademark protection for the Paladin character and his card, then filed suit against Viacom International, the distributor of “Have Gun” in syndication. In September of 1991, a jury in Providence found Viacom guilty of violating DeCosta’s trademark. He was awarded $1 million in compensation for his loss and $2.5 million in punitive damages, for a cool sum of $3.5 million (nearly $8 million today).¹¹⁹

Victor DeCosta died in January of 1993 at the age of eighty-four, sixteen months after the Viacom verdict.¹²⁰ He had spent thirty-four years and the bulk of his savings trying to obtain compensation for the appropriation of his Paladin character. When interviewed after finally triumphing in court, he declared: “The money to me is secondary at my age. I just wanted to get justice. I’m a stubborn old man. When I own something, I don’t allow nobody to steal it.”¹²¹ Unfortunately for him, he did not live long enough to receive the money he had been awarded at trial, and it passed to his heirs instead.