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Those who are fed up with the romantic cult of individual genius and the increasing tendency to demand payment for even short quotations of copyrighted material would have us believe there’s no such thing as plagiarism. Last week at the Art Institute they had their say.

The panel discussion, held under the auspices of the Chicago Humanities Festival and the University of Chicago’s Franke Institute for the Humanities, was moderated by former New Yorker staff writer (and current CHF artistic director) Lawrence Weschler and headlined by novelist Jonathan Lethem and Judge Richard Posner. The argument against plagiarism’s existence, made by everyone but Posner, went by example: Shakespeare stole the plot of Romeo and Juliet. He lifted almost every word in his superb description of Cleopatra from a translation of Plutarch. Classical music depends on allusion that’s akin to sampling. And who would hang the dreaded scarlet P on Roy Lichtenstein or Andy Warhol? “As if there was anything in human utterance that isn’t plagiarism,” Weschler asserted in his introduction, and at the evening’s conclusion, University of Chicago professor of comparative literature Francoise Meltzer reiterated the point. “Everything is cumulative,” she said. “The originality myth has come to a close.”

Astonishing statements–not that anyone on the panel saw fit to challenge them. And no one made the important distinction between Shakespeare and the college slacker who copies and pastes someone else’s prose into a term paper. Judge Posner came closest. His recent Little Book of Plagiarism, which gives the term a through and historical once-over, begins with the high-profile case of Kaavya Viswanathan, the Harvard undergrad who in 2006 lost a major book contract and briefly became a household name for putting near-verbatim passages from a previously published book by Megan McCafferty into her chick-lit debut, How Opal Mehta Got Kissed, Got Wild, and Got a Life.

Viswanathan committed plagiarism according to Posner’s careful definition: fraudulent copying that involves deception and causes harm. She also infringed on McCafferty’s copyright. The two offenses are different, even though they overlap. If McCafferty’s book had been a century old and out of copyright, then Viswanathan would have committed no crime, but she still would have been a plagiarist. Going the other way, if Viswanathan had openly acknowledged her debt to McCafferty, she might have been excused of plagiarism (no deception), but she still would have infringed McCafferty’s copyright.

In other words, copyright infringement is a property offense that harms the person plagiarized, whereas plagiarism may also harm the plagiarizer’s customers, competitors, and the general public. Those who infringe copyright may end up defending themselves in court; those who plagiarize end up in the court of public opinion, which is comparatively merciless and knows no statute of limitations. Nearly 20 years have passed since Joe Biden appropriated part of a speech by British pol Neal Kinnock during a presidential campaign, but the public has neither forgiven nor forgotten. Nor, arguably, should it.

Posner’s definition of plagiarism is precise but not absolute. As he explains, different times, places, and cultures define fraud, deception, and harm differently. European professors, for instance, aren’t considered plagiarists for publishing assistants’ work as their own, though in the U.S. that privilege is limited to judges.

Jonathan Lethem’s manifesto on appropriation, “The Ecstasy of Influence: A Plagiarism,” is as passionate as Posner’s book is cool. Published in Harper’s earlier this year, it consists largely of snippets taken from Walter Benjamin, Harry Truman, and many others (including Posner), used without quotation marks and sometimes without paraphrase. (Despite the audacity of the subtitle, Lethem acknowledges his sources in detail at the end.) “It becomes apparent,” Lethem wrote, “that appropriation, mimicry, quotation, allusion, and sublimated collaboration consist of a kind of sine qua non of the creative act, cutting across all forms and genres in the realm of cultural production.” At the Art Institute, he recalled his experience growing up in a household saturated with the visual arts, where appropriating others’ work and building on it was second nature. When he later turned to literature, he was astonished to learn writers had hang-ups about doing that.

Culture, Lethem argues, exists in both a gift economy and a market economy, and he’s put his own work on the line, offering to give away the film rights to his new novel, You Don’t Love Me Yet, to anyone who will release those rights five years after the film’s debut, allowing later creators to build on it freely.

Things heated up toward the end of the night, when Lethem came back to the Viswanathan case, calling it a “miserable situation” in which the author had been led on by her publisher, who wanted a book very similar to McCafferty’s. Most accusations of plagiarism, Lethem added, are made in bad faith. Plagiarismlike practices are “inherent in writing itself. I am amazed by the willingness of literary writers and editors to form a lynch mob.”

That was too much for Posner. Bear in mind that he’s often thought of as a pragmatist and a relativizer, someone who regularly dissolves legal absolutes like civil liberties in the acid of economic trade-offs. But in this company, the judge’s soft, high-pitched voice and wicked deadpan seemed like reason itself. “Now you’re abolishing any kind of plagiarism at all,” he said to Lethem. “What would you regard as a genuine case of plagiarism?”

Lethem offered none, though he left himself some wiggle room, saying he’d “have to understand everything about the situation.” He said he wasn’t interested in the word because accusing someone of plagiarism is like accusing them of heresy.

The real discussion was finally starting. Had it continued the panelists might have gone on to acknowledge two realities–some copying is creative adaptation and some is fraudulent–and helped the audience recognize the difference. But time was up. The panel adjourned. The audience stood, stretched, chatted, bought some books, retrieved their coats, and dispersed into the night, bundled against the cold but unprotected from the intellectual fog.