Plagiarism, Patchwriting and the Race and Gender Hierarchy of Online Idea Theft

Chicago-based writer Mikki Kendall, cofounder of the Hood Feminist blog, co-editor of The Angry Black Woman blog and creator of the viral hashtag #SolidarityIsForWhiteWomen, speaks to a young crowd eager to learn more about the latest directions in feminist thought, February 19, 2015. Kendall’s involvement with the hashtag was diminished or ignored by many publications that wrote about it. (Photo: Rosa Luxemburg Stiftung)

A few months ago, as I was sitting down to my morning coffee, several friends – all from very different circles of my life – sent me a link to an article, accompanied by some variation of the question: “Didn’t you already write this?” The article in question had just been published on a popular online publication, one that I read and link to regularly, and has close to 8 million readers.

Usually, when I read something online that’s similar to something I’ve already published on my tiny WordPress blog, I chalk it up to the great intellectual zeitgeist. Because great minds do, usually, think alike, especially when those minds are reading and writing and posting and sharing and tweeting in the same small, specialized online space. I am certain that most of the time, the author in question is not aware of me or my scholarship. It’s a world wide web out there, after all. Why would someone with a successful, paid writing career need to steal content from me, a rinky-dink blogger who gives her writing away for free?

But in this case, the writer in question was familiar with my work. She travels in the same small, specialized online space that I do. She partakes of the same zeitgeist. In fact, she had started following my blog just a few days after I posted the essay that she would later mimic in conceit, tone and even overall structure.

When pressed on this point, the writer told me that she does read my blog. She even had it listed on her own blog’s (now-defunct) blogroll. But she denied reading my two most recent posts, the posts I accused her of copying. Therefore she refused to link to or cite my blog in her original piece, a piece that generated millions of page views, social media shares, praise and, of course, money, for both her and the publication for which she is a columnist.

So if a writer publishes a piece (and profits from a piece) that is substantially similar to a previously published piece, one which the writer had most certainly heard of, if not read, is this copyright infringement? Has this writer actually done something wrong?

“We use fancy words to describe what is pretty intuitive,” says intellectual property lawyer Bryan Jaketic. “It’s not copyright infringement to share the same broad concept, but if you break two works down and show that the structure, tone and other elements are very similar, then there is potentially infringement.” Indeed, this subtle type of copyright infringement even has a name: idea theft.

Idea theft occurs when no direct quotes are lifted from the original, but the idea, structure and execution of the final piece is similar enough to the original that people who have read one piece will instantly see similarities upon reading the other. According to Poynter’s excellent “Is It Plagiarism?” flowchart, idea theft is described as “a retread of someone else’s work using the same sources and concepts.”

In addition to idea theft, Poynter’s flowchart also introduces the concept of “patchwriting”: “If a journalist has mirrored the language of another author save for a few word substitutions, they may be guilty of patchwriting. This is a lesser charge than plagiarism if the original author is credited.”

Jaketic adds that determining whether or not theft has truly taken place is often highly subjective. “The test for copyright infringement varies a bit from court to court. But a common test is whether an ordinary observer would find two works to be substantially similar…. Generally, we’re talking about a lay person – would a person off the street think that the works – each considered as a whole – are substantially similar?”

In a recent post published to her own WordPress blog, sociologist Tressie McMillan Cottom writes that this type of idea theft is nothing new: “Journalists have been ‘borrowing’ ledes since journalism started journalisming,” but adds, “You can have the regulatory right to perform an act but not the moral right to do so…. Is it right for BuzzOKGawkerTimes to take my content all willy-nilly and do with it what they please?”

Legally speaking, idea theft isn’t plagiarism. However, ethically speaking (and don’t we all like to speak ethically?), idea theft is just as egregious as plagiarism, especially when those ideas are stolen from free sites and appropriated by those who actually make a profit from their online labor. Furthermore, those who experience idea theft most frequently online tend to be women of color. For example, back in August 2013, writer and activist Mikki Kendall started the #SolidarityIsForWhiteWomen hashtag to highlight the ways in which women of color are systematically erased from larger conversations about women and feminism. The hashtag generated thousands of tweets from women from all over the world in a single day, snagging the attention of content-hungry media outlets. Jezebel, a site aimed at a female readership, published a quick “scrape” of their favorite tweets from the hashtag. The problem? The author of the post failed to mention Kendall’s role as the originator of the hashtag and the source of some of its most powerful tweets.

However, as Kendall has thousands of followers and friends on Twitter, the omission – particularly damning in a story about the ways women of color are erased from conversations about feminism – was swiftly corrected. Kendall told Truthout:

To be honest (and I think this is true for a lot of people), if you have a lot of followers then you’re more likely to get credit, than if you are someone the (re)writer of a piece thinks of as a nobody. If you don’t have a large enough social media footprint then I think that some of these writers perceive you as someone who they can claim no one has ever heard of and thus your work is fair game. Also, given the unbearable whiteness of many newsrooms I think racial and gender bias comes into play.

In other words, the only way for women of color to protect their online content from idea theft is to band together and support one another. Single voices can be ignored, but a legion of voices cannot. In December of 2014, an online collective of Black, AfroIndigenous, and NDN women, created the hashtag #ThisTweetCalledMyBack to bring awareness how their labor—in the form of writing, hosting teach-ins and community organizing—is routinely pilfered and appropriated without attribution or monetary compensation: “Never mind that we are constantly a full month ahead of the news cycle and that our frameworks mysteriously appear in a rash of articles and essays after we hammer them out publicly on digital mediums.” (The hashtag references This Bridge Called My Back: Writings By Radical Women of Color, a 1981 anthology of work by Audre Lorde, Ana Castillo, and other feminist writers.) The collective see these acts not simply as plagiarism and exploitation, but as a systemic form of gendered and racialized violence against the individuals working so hard to get these messages out.

Idea theft is a troubling trend in journalism, one in which writers who find themselves in constant need of content and ideas begin to look for shortcuts, inspiration and, yes, appropriation, in the near-constant stream of content, the ambient world of prose, that is the internet.

Idea theft, when perpetrated by professional writers, is fundamentally a microaggression – a seemingly innocuous act that allows someone with access to power to denigrate those without it. Those aggrieved by microaggressions like idea theft are always left wondering why it happened, and typically left wondering if it even happened. Did someone steal my ideas? Am I being egotistical? Why am I not getting credit?

This gaslighting is a fundamental part of idea theft and microaggressions. It happens because the originators of the ideas belong to a class of people who are not entitled to be credited for their ideas – people who are marginalized based on their gender, race, ethnicity, sexual orientation or an intersection of these identities. They often write in marginalized spaces – minority publications like The Grio, their own WordPress blogs or on Twitter.

White People Plagiarizing: Second Chances, Softer Treatment

After reporter Janet Cooke was caught fabricating details of her 1980 profile “Jimmy’s World,” about an 8-year-old boy addicted to heroin, The Washington Post rushed to distance themselves from her. Their 14,000-word postmortem of the scandal specifically questioned her beauty and race: “Did race have anything to do with Cooke’s ascendancy? Did she get choice assignments and move up because she was handsome and black? Was she employed for the same reason?”

This same accusation of race as the culprit for journalistic misdeeds came up constantly in coverage of The New York Times’ 2003 Jayson Blair scandal. (Blair, being a man, was spared accusations of handsomeness as his downfall.) Though the Times’ 7,000-word roundup of Blair’s fabrications explicitly denied that race was a factor in his promotion to staff reporter, Metro section editor Jon Landman felt differently: “I think race was the decisive factor in his promotion.”

In the case of Kendra Marr, the Politico reporter who resigned in 2011 after not properly attributing the reporting of The New York Times and others in her stories, there was a rush to pile on. Poynter’s Craig Silverman took issue with the fact that Politico editors didn’t specifically label her as a plagiarist in their editor’s note detailing the controversy. The scrutiny was intense and lasting, with Adweek’s FishbowlDC blog presenting a bizarrely voyeuristic post, “What’s Kendra Marr Tweeting?,” that simply aggregated five banal tweets of Marr’s nearly eight months after the story broke.

The common factor in all three cases? Cooke, Blair and Marr were all reporters of color. Cooke was last seen in a 1996 GQ profile by Mike Sager (now a Kindle Single), working as a part-time retail clerk in Toledo. When not filling in as a punchline or cautionary tale, Blair is now a life coach in Centreville, Virginia. Of all three, Marr is the only one who landed on her feet, as a communications strategist, according to her LinkedIn profile.

Compare this with the treatment given to white plagiarists and fabricators. When Zachary Kouwe, a New York Times blogger, was fired in 2010 for plagiarizing from Breaking Media’s Dealbreaker, he was hired just months later by – wait for it – Dealbreaker.

When New York Times columnist Maureen Dowd was caught copy and pasting an entire paragraph from Talking Points Memo’s Josh Marshall, her explanation – that she hadn’t read Marshall’s column, but was told the line verbatim by a friend, which then made it into her column – was convoluted, but her past work was never examined and she was largely given a pass by the media. Time magazine pleaded for leniency: “To be fair, to write as many columns as Dowd does (two a week since 1995), writers can become a little like idea magpies, taking whatever shiny object they can find to make their creation robust and attractive. Dowd has to make her voice heard over all the political static that constantly buzzes in the blogosphere. And, inevitably, mistakes slip through.” Media critic and professional curmudgeon Jack Shafer wrote in Slate that “Her explanation of how the plagiarism happened seems plausible – if a tad incomplete.” (Compare that with Shafer’s harsh assessment of Marr’s troubles: “These aren’t excuses. These are confessions. And they mitigate nothing.”)

Stephen Glass continues to be entertained as a cultural figure, receiving a book deal for a novel, a movie about his life, and a fawning New Republic profile from Hannah Roisin. His foster pets and refusal to marry his girlfriend until gay marriage is legal in California are each mentioned once. His veganism comes up three times. His sincerity and contrition pervade the piece.

After his plagiarism and fabrication scandal, Jonah Lehrer was given $20,000 by the Knight Foundation to speak about – wait for it – plagiarism, and he was subsequently awarded a book deal from Simon & Schuster. “We believe in second chances,” publisher Jonathan Karp told The New York Times. (Slate’s Daniel Engber later revealed that parts of the proposal had been plagiarized, and no release date has been set for the book.)

The pattern is clear – white people get passes as the media struggles to understand why they committed the highest sins of journalism. People of color are excoriated – excuses are rarely asked for and never believed. Editors and publishers are lionized as war heroes who dealt with an enemy in the wire.

Coverage of the Marr scandal largely followed the same pattern. Gawker called the editor’s note “admirably direct,” while Erik Wemple at The Washington Post used praise for Politico’s editors as his lede: “Politico handled the Kendra Marr situation the way it handles a hot news story: instantly and decisively.”

Yet few outlets stopped to question why this happened. An earlier post by Wemple touched on the “go-go journalism culture” of Politico, but stopped short of asking who was responsible for this culture. A Washington Post story quoted an anonymous Politico staffer saying that Marr felt “extreme pressure” to keep up with Politico’s constant news cycle. Was this feeling justified? Was Marr the only person responsible for this lapse of journalistic ethics?

In December 2014, Wemple reported that approximately 25 percent of Politico staffers jumped ship in 2014, a turnover rate fueled by Politico’s constant publishing demands. The New York Times noted Politico’s brutal employee schedule as early as 2010, the year in which Politico lost a dozen reporters (out of their then 70-large staff) in the first six months. The headline of the Times piece, “In a World of Online News, Burnout Starts Younger,” specifically highlighted the pressures faced by young reporters, bloggers and content producers in a culture that demands constant content. But no outlets were willing to ask who, exactly, creates and sustains this culture, or to what extent this creation played a role in journalistic misdeeds.

What if it’s the publishers that are creating these unsustainable conditions, then simply stepping back and letting writers take the fall when they can’t handle the pressure?

Who’s Losing at Online Publishing?

In 2013, Digiday’s “Who’s Winning at Volume in Publishing?” detailed the ratio of editorial employees to pieces of content published per day in both traditional and online publications. The New York Times, with 1,100 editorial staffers, produces 350 pieces of digital content per day. That’s a ratio of 3.1 full-time employees for every piece of daily content produced. Moving away from print publications, that ratio changes dramatically at the level of digital-only publishers.

An online publication with a more traditional publishing approach to content, Slate has 40 full-time staffers who oversee 60 pieces of content per day, or 1.5 pieces per day. In contrast, The Huffington Post’s 532 editorial staffers produce 1,200 pieces of content per day, or 2.2 pieces per staffer. And it’s even worse at other publications. BuzzFeed’s 100 staffers produce 373 pieces of content per day, or 3.7 pieces per staffer. This level of production is simply unsustainable.

Beyond just overworking their writers and editors, a number of publications simply rely on free labor. The Huffington Post was sued in 2011 by unpaid bloggers who felt that they were owed part of the $315 million AOL spent to acquire the site. The lawsuit was dismissed in 2012, on the grounds that its bloggers never expected, and could not reasonably expect, to be paid for their efforts.

Bleacher Report, an online sports publication that has attracted more than $25 million in venture capital, pays its entry-level writers with virtual medals, and “author points” that correspond to “reputation levels,” similar to the real gains made by playing a PlayStation game. “Depending on the extent of your achievements, you’ll be eligible to obtain ascending ‘gem levels’ of each medal class per the terms of the following scale,” explains Bleacher Report. Writing 500 lead stories – “articles which are selected to appear in the lead story rotator at the top of the Bleacher Report home page” – earns one a very virtual diamond medal.

Similarly, Mic has instituted a similar points system to promote commenters to writers. “When you sign up for an account on the site, you start off as a commenter, with a small word limit. As you get more mics for saying smart things in the comments, you work your way up through a system of levels, and at the highest level you become a pundit,” one of the founders told the Columbia Journalism Review. Before hiring staff writers, Mic demands that writers go through an extended apprenticeship. Why? “Because writing for us in an on-call basis is the only way to be considered for a paid position with us in the future,” says Mic. Naturally, these entreaties to work for free are pitched as opportunities.

For the “section writer” position, “PolicyMic offers remote writers the chance to become columnists and receive a crash course in online politics, culture or feminism writing.” (Note to Mic’s editors for their “crash course” in writing – “politics,” “culture” and “feminism” are nouns, not adjectives.) Their “on-call breaking news writer” position (presumably what was formerly referred to as a “reporter,” or at least “blogger”) is made to commit to writing two 400-500 news pieces per week, as assigned by a Mic editor.

Many young writers – “content producers,” in the parlance of online publishing – believe that they’ll get their chance for swanky columnist positions or long-form print writing gigs, the kind where they can spend months on a single article and get paid enough to live as a writer without a day job, if they only tough it out in the trenches of blogging or online journalism long enough to get noticed.

But the dirty secret of magazine journalism was that magazines were often sustained by wealthy patrons and rarely made enough money to cover their costs. The Atlantic lost millions every year between 2000 and 2010. Live events, like conferences and cruises, account for 20 percent of its revenue, then-president M. Scott Haven told The New York Times in 2013. The Nation, founded in 1865, finally made money for the first time in 2003. (It’s still largely supported by voluntary donations to the publication, a base the magazine calls “Nation Builders.”) The New Yorker, purchased by Condé Nast in 1985, also lost money until 2003. It’s the rise of the internet, keeping readers engaged with daily content, that has allowed legacy publications to make money through direct solicitations, conferences and cruises, and ad revenue from bloggers not making a living wage that has allowed these publications to finally profit.

So it’s no surprise that so many writers have simply taken to Twitter or WordPress blogs to express their ideas for no money. It’s also no surprise that desperate, underpaid (or unpaid) content producers for major publishers are pillaging these stores to fuel the fires of the online publishing industry.

“If I’m not entitled to steal anyone else’s online content without paying them,” the unpaid or poorly paid masses of bloggers at monetized publications might think, “Why is this company entitled to take mine?” Any publication that simply banned its staff from clear appropriation would find their content drying up, so they push writers into cheaper and faster modes of content creation – mostly by poaching other material online.

And so begins the false-dichotomous battle between writers who work for nothing on Twitter and WordPress blogs, and writers who work for practically nothing for major online publications. The publishers, shielded by venture-capitalist money, are untouched by the shrapnel.

Poynter’s Kelly McBride challenges writers and editors to ask themselves, “What can we provide to our audience that’s different than what’s already been published?” But this simply isn’t possible with the current economic system. Writers don’t have time to add something new. This isn’t even a daily deadline – it’s a deadline every five hours (in the case of Slate) or every two hours (in the case of BuzzFeed).

“In our panic to keep up with a changing world, we’ve failed to identify new methods for originality,” McBride wrote in a column for the Globe and Mail. “We need to look to the writer-editor relationship, to the community of writers and thinkers, and to the very process that writers use to go from nothing to something.”

With the rise of the freelance economy, it’s often quite challenging for writers to earn a stable income. But that shouldn’t excuse the kind of rampant appropriation occurring over and over again online, in so many forms and in so many platforms. The unlimited access to and exchange of information online is confusing the boundaries between sharing and appropriating, between engaging and stealing.

For example, novelist Sorahya Moore started a blog in 2012 called “La Vide Sexual,” a free platform where she shared the novellas she was writing:

One day, someone found me on Twitter and said that she’d read a story on someone’s blog that was eerily similar to mine … It wasn’t exactly word for word, some was translated into a South African language, but what was in English and what my friends translated for me, was mine. Word for word. Again, I confronted the owner of the page and instead of owning up to what’d happened, s/he simply deleted the page. No apology, no explanation. Nothing.

Of course, the entire history of ideas can’t be catalogued or cited. Ideas get repeated, repurposed and recirculated. And what happened to me and to many, many other people who have had their ideas taken and repurposed for the profit of others, isn’t exactly plagiarism. It’s not illegal. But these acts of appropriation, based on the belief that one can and even should “redo” the work of someone else just because it’s technically legal to do so, are, at the very least, unfair and unethical.

If the promise of the internet is free, unlimited access to every great (and terrible) thought humanity has to offer, its dark reverse is the promise of free, unlimited theft. Idea theft raises the question: Without the threat of a lawsuit, what debts do we owe each other as the creators and readers and circulators of online content? A solid delineation of the gray areas of plagiarism and online aggregation is therefore sorely needed in this day and age. We need to understand what we’re agreeing to when we write or blog or tweet and then hit “enter.”

Editors’ note: The version of this piece originally published, omitted a paragraph on #ThisTweetCalledMyBack, which had been cut by the editors for length and to maintain the focus of the piece. Truthout editors have restored the paragraph and apologize to the authors of the piece and to the authors of #ThisTweetCalledMyBack for the error in judgment.

Editors’ note, February 28, 2017: The version of this piece originally published included a section alleging plagiarism on the part of journalist Derrick Clifton in a 2014 Mic article entitled “The Big Problem With Kim Kardashian’s Butt Photos Nobody Is Talking About.” Subsequently, Clifton has brought it to our attention that neither he nor Mic staff were contacted for comment prior to publication, and on review Truthout editors found the allegations to be largely unsubstantiated. We have removed the section in question and we apologize for the error in judgment.