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How Jeannie Suk and Scott Hemphill Committed Plagiarism

July 15, 2011

Here are some transparent examples of plagiarism in the Suk and Hemphill article on fashion copyright, The Law, Economics and Culture of Fashion.

In reading this, it’s important to remember that the standard for academic plagiarism is broader than copyright. As noted in Harvard‘s own plagiarism policy, plagiarism is the use of “any idea or any language from someone else without adequately crediting that source.”

Suk and Hemphill use the run of the mill strategies for plagiarizing Susan Scafidi. They appropriate her ideas without citation and claim her ideas as their own. They paraphrase Scafidi’s language, with words that are slightly changed or occasionally with the exact same words. They also pull the trick of citing Scafidi in the acknowledgments and for an occasional supporting detail, but not going on to credit her for the main theories, arguments and examples that Suk and Hemphill have lifted.

A more detailed chart, with citations, can be found here.

  • Scafidi wrote a book on IP and culture, and she has long argued for the central importance of cultural analysis and the need to rethink law and economics from a cultural perspective. However, Suk and Hemphill claim that they are the first to have applied a cultural analysis to fashion copying and that blending cultural analysis with law and economics is a “new” method that they came up with on their own.
  • In multiple public statements Scafidi has argued that the primary harm from copying falls on emerging designers, who lack trademark protection and don’t have the resources to absorb losses. Nonetheless, Suk and Hemphill present this very same point as their original idea.
  • Scafidi distinguishes between following a trend and “closely” copying with a literal, line-for-line knockoff. Suk and Hemphill claim that their work is new because it differentiates between following a trend and “closely” copying.
  • Scafidi argues that we need a new IP approach based on recognizing optimal levels of copying and differentiating close copying from trends. Hemphill and Suk make the same argument.
  • At a Fashion Law Institute panel on the IDPPPA, Scafidi argued that this bill is not about protecting the $3000 dress, but the $300 dress created by an emerging designer. Hemphill attended this panel. In her prepared statement for Congress today, Suk likewise uses the example of “a designer’s dress that retails for $300 instead of $3000” to make the same point.
  • Scafidi has argued that the fashion copyright bill “would increase affordable fashion choices.” In her testimony before Congress today, Suk argues that the fashion copyright bill “would increase consumers’ choice of designs.”
  • Scafidi concluded her testimony before Congress by calling for “tailored protection,” a metaphor used throughout her work. Suk and Hemphill concluded their article by calling from “tailored protection,” and Suk also concludes her own testimony by describing the bill as a “tailored response.”
  • Scafidi has written extensively about the “distortion” of fashion and IP law resulting from the fact that current law does not protect original designs but does protect trademark and trade dress. Suk and Hemphill make the exact same arguments, expressly noting the same “distortion.”
  • Scafidi notes that copyists hurt creative design by targeting the “most successful models” without having to bear the cost and the risk of developing new products. Suk and Hemphill make the same argument.
  • Scafidi argues that it would be more efficient for there to be a statutory alternative to a gradual judicially interpreted “conceptual separability” standard in fashion copyright. Suk and Hemphill make the same argument.
  • In her Congressional testimony and elsewhere, Scafidi proposes a narrowly tailored legal standard prohibiting “closely and substantially similar” copies. Suk and Hemphill propose a legal standard prohibiting “close copies,” and Suk falsely takes credit for the IDPPPA including a narrowly tailored legal standard.
  • In her Congressional testimony and elsewhere, Scafidi has repeatedly pointed out that such a standard would be consistent with the low protectionist argument that copyright protection should be adapted to particular creative industries. Suk and Hemphill make the same point.
  • Scafidi has long argued that narrowly tailored protection would not discourage innovation, but would actually encourage creative design by giving copyists an incentive to make their work identifiably different. Suk and Hemphill say the same thing.
  • Applying concepts from cultural theory, Scafidi uses two organizing categories: mimesis (imitation) and metamorphosis (creative transformation). Suk and Hemphill did the same thing with just a slight paraphrase, dividing behavior into flocking (imitation) and differentiation (the “creative impulse”). They claim to have devised these basic concepts themselves.
  • Scafidi explains that a cultural perspective analyzes the fundamentally “human impulses” that lead to imitation and creative expression. Following her lead, Suk and Hemphill argue that a cultural model examines the “human desires” to copy and create.

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