The Daily Whim

The Daily Whim

Wed. Nov 17, 2004

Blog Burglarized By Book

I suppose we should have seen this coming. The Blogosphere has been compared to the idea that if you put several million monkeys in front of keyboards, one or two of them will write something worthwhile. What we didn’t realize is that some Real World book author might then take that monkey’s words … and publish them as their own.

A freelance writer in Alabama, who early this year reported on George W. Bush’s activities in Alabama in 1972, contends that Kitty Kelley plagiarized material from his article in her recent best-selling book about the Bush family.

Seven paragraphs of material in the book, totaling about 400 words, repeat verbatim or closely track sections of Mr. Wilson’s article, titled “George W. Bush’s Lost Year in 1972 Alabama.” The article, which can be found at, was published on Feb. 2 on Mr. Wilson’s Web site, Southerner Daily News. Ms. Kelley’s book was released on Sept. 14.

In its legal answer to the lawsuit filed in the court in Alabama, Random House Inc. denied Mr. Wilson’s claims and said that if any material was copied or wrongfully appropriated, it was not protected by copyright, was of minimal scope, did not damage Mr. Wilson and was covered under the legal doctrine of “fair use.”

NY Times: A Writer Is Suing the Author of a Hit Book on the Bushes

I admit I haven’t read the two pieces in their entirety, just the sample comparison The New York Times provides in the article, but that last sentence of legal buzzword BS from an alleged lawyer really gets my goat.

[I]f any material was copied or wrongfully appropriated,” then that would be wrong ... right? If it was wrongfully appropriated, that would be because it was someone else’s work, correct? And the Congressional Copyright Act of 1976 says that a legally effective copyright is created the moment a work is created. Not published. Not purchased. Created.

And that work is indeedprotected by copyright,” until the author expressly (in writing) proclaims otherwise.

People create legally effective copyrights every day, and don’t even know it. Did you write your opinion about some subject today, even if you are the only person who read it? Copyrighted, the moment you stopped typing. Did you take a picture today, which remains unprocessed and unviewed? Copyrighted, the instant after you click the shutter.

Yes, there is an additional paperwork process by which you can submit a formal claim of copyright to the Library of Congress. But not going through that process does not diminish the legality of your copyright, it primarily diminishes the damages you can judicially seek in an infringement case (damages are usually tripled on a filed copyright). But you don’t need a paper trail to create a copyright.

You may not ever know it, or ever use it, or ever present it in court, but the copyright is still there. As it was for Mr. Wilson when he wrote his article (i.e., it was copyrighted before he even placed it on the web).

As for a lack of “damage” to Mr. Wilson, that is not the standard to apply, the question to ask is “did Ms. Kelley profit from using his work in her book?” Given that the supposedly pilfered text involves claims of drug use by Bush, and that was one of the primary “talking points” in selling this book, it’s not hard to argue she profited.

And finally, and perhaps most insultingly coming from an alleged lawyer for Random House, the claim that any reproduction of Wilson’s work “was covered under the legal doctrine of ‘fair use.’” First of all, that would be an admission the work is indeed copyrighted. Fair use means that you may reproduce a portion of a copyrighted work if it is done primarily for the purposes of criticism (like a book review), commentary (like my quote of the above NY Times article), or education. Ms. Kelley’s book for profit does not seem to come within smelling distance of that standard.

And then’s there the small matter of citation and attribution. Reproducing a work under fair use still requires attribution. Ms. Kelley not only doesn’t give Mr. Wilson credit, she doesn’t even give him quotation marks. The text appears to be offered as her own.

And as bad as it might be for a “professional” writer like Ms. Kelley to do such a thing, it nearly pales in comparison to that one sentence professional atrocity issued by a lawyer in defense of her book. If the publishing industry really operated on the “copyright standards” that sentence proclaims, Random House would have gone bankrupt ages ago.

Due to plagiarism of their products.

Peanut Gallery

1  emcee fleshy wrote:

Some Lawyers feel obligated to give every possible argument with even a 1% chance of success in an Answer. I don’t like to do this, because its not credible. But when you’ve got no credible defense to liability and are just trying limit damages and reach a settlement (which should have happened before they got to court) it’ll do.

Notably, the minimal scope argument has some merit, and the lack of damage arguments, while mis-stated, is also supportable. I suspect that “The southerner” asked for more than the case was actually worth. Where liability isn’t really a question, people tend to ask for outrageous sums. Strangely, it’s Plaintiffs who are completely right who most often make this mistake.

Perhaps he thought threat of a lawsuit that would ruin Kitty Kelly’s journalistic credibility would be worth something.


Anyway, don’t hate on the lawyers. Those pleadings are written for other lawyers to read. If I’m the Plaintiff’s lawyer, I don’t get offended. I pick up the phone and call the guy, because I know that he knows that he’s up a creek.

Besides, this sort of diatribe is kind of like me criticizing one of your pictures for not centering the focal point.

2  Reid wrote:

Anyway, don’t hate on the lawyers. Those pleadings are written for other lawyers to read.

I ain’t hatin’ ... it just be in mah face. Yes, you’re right, it is a legal response to the case, in which case it might make sense to sling it all and see what sticks, not a public relations response, where that kind of approach is considered … shall we say, too transparent.

But even if it was only meant for other lawyers, it ended up in the New York Times, and shortly thereafter, under my skin.

Besides, this sort of diatribe is kind of like me criticizing one of your pictures for not centering the focal point.

But don’t you know? [1] If you pick up a camera, you’re a photographer, and immediately qualified to critique anyone, and [2] your specific critique about centering focal point would be countered by a submission of the Rule of Thirds, a well known Photographic Law. Case dismissed.

3  emcee fleshy wrote:

your specific critique about centering focal point would be countered by a submission of the Rule of Thirds, a well known Photographic Law.

That’s kinda my point.

Anyway, the silverlight website that you just directed me to does an interesting thing. The background is stationary in the browser window, even as you scroll to read the text. Maybe I’ve been under a rock, but I’ve never seen this before. I like it.*

*Though it could get annoying if used too much. (see also wah-wah pedal)

4  Reid wrote:

That’s kinda my point.

Damn lawyers. Never ask a question to which you don’t already know the answer. Fell into it. Damn lawyers.

see also wah-wah pedal

Or cowbell.

The non-scrolling background in this case in an “IE only” phenomenon (though it can be done in Mozilla/Firefox as well). And, yeah, it can get old, plus it degrades readability for me. That was the result of a 5 second “feelin’ lucky” Google of Rule of Thirds.

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