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July 30, 2014


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Orin Kerr

In the academic setting, the goal is to evaluate an individual student based on the student's own work. We need to know what is the student's work and what has been taken from elsewhere, so we require citations and don't allow ghostwriting. On the other hand, in the non-academic setting, we're usually not scoring individuals but rather trying to find out what an institution or entity has to say.

Doug Richmond

With plagiarism, the plagiarist is misappropriating the words or ideas of another. Not so with ghostwriting, where the ghostwriter has consented to the arrangement and knows that his or her words will become those of the client.

David Orentlicher

Thanks very much for your comments. I don't think the consent of the ghostwriter excuses the failure to attribute because readers still are misled as to the author of the words. The ghostwriter may not be harmed, but the public is.

I think the individual-institution distinction may make sense for some of the examples I give, though it's a stretch--I'm not sure voters see John Walsh as representing the office of the senator rather than himself. But the individual versus institution distinction does not work for other examples that I give or that I might have given. A ghostwritten autobiography of John Walsh speaks for John Walsh, and speeches, articles, or books by non-incumbent candidates for office speak for themselves. The same is true for speeches, articles, or books by celebrities from sports, entertainment, or other settings. Hence, we do not limit our plagiarism rules to the academic setting, but extend them to journalists, book authors, and other writers. Moreover, even when we have individuals who can be seen as representing institutions, we usually have different for official business and personal business (e.g., the elected official who is campaigning). If the individual versus institution distinction really were doing the work in plagiarism, we should see different rules for attribution between official business and personal business.


There's a Mary Tyler Moore show episode that deals with a similar issue. Season 7, Episode 30 -- "Murray Ghosts for Ted" (

Derek Tokaz

What about with research assistants? And I'll first note that the name is a bit of a misnomer. Research assistants don't just do research, they also contribute ideas, do some editing, and sometimes draft original language themselves.

Professors generally acknowledge their research assistants in a footnote citing their contribution in a general way. Why is that permissible? Imagine a professor puts a footnote at the beginning of an article saying "I'd like to thank David Orentlicher and Orin Kerr for laying the groundwork in this field. Many of the ideas I've used and some of the specific language comes from their works. Thanks guys!." If that's the only citation, surely he's committing plagiarism, no?

Of course, those who think the consent of the ghost writer to not be acknowledged settles the matter will probably think the same thing of research assistants. So, I'll offer an even harder case to defend:

A professor is interested in writing a paper on Obscure Nuance Theta. So, he decides to offer a seminar called Studies in Obscure Nuance Theta, and requires two papers from each student, not to mention a great deal of classroom discussion. A year later he publishes a paper titled Theta: An Obscure Nuance. In it he cites articles that were first brought to his attention in papers his students turned in. He uses insights that he got through the class discussions -- some straight from students, and other a mix of student ideas and his own refinement. And, he may even use a few phrases that came up in classroom discussions or student papers. What sort of citations should the professor use to acknowledge student contributions?

Jeff Harrison

It seems to me that the use of a ghostwriter is relative harmless. First, the ideas expressed will still be those of the official and the ideas are likely more important than their expression. Second, the official will be held accountable for what is uttered. No official I've ever heard of has said, "my ghostwriter got it wrong." Finally, I am not sure there is a huge distinction, in the case of a public figure, between a ghostwriter, whose craft is to find most appealing way to express the ideas, and the elocution coach, the hair stylist, or the person who advises the official on what clothes he or she wears. They are all about appeal, aren't they?

Derek Tokaz


I agree that in the context of political speech writing, ghost writers are perfectly fine -- politicians are there to pick among ideas, not necessarily to generate ideas. They're a bit like Tim Gunn; we want them to have excellent taste (in policy), but don't really care if they can sew.

However, I think you're doing speech writers a disservice to compare them to stylists. The amount of research required alone makes it a qualitatively different task, not to mention the time constraints, and the need to coordinate with any number of other politicians. Without intending to belittle stylists, styling the same politician is a bit rote. The same tie that looked good last month continues to look good today. Speeches -- even stump speeches -- do not hold up so well.

Jeff Harrison

Yes, I would think it is a tougher and more stressful job. I think I was reacting the the idea that there should be more acknowledgement than there is. If so, where would it stop -- my suit was made by Brooks Brothers, my hair styled by Mr. Steve, my speech coach is Mr. T.

Derek Tokaz


It seems that your "where would it stop" argument is based on the idea that speechwriters are engaged in a rather mechanical job, adding nothing but style in a similar manner to stylists. If all they were doing was taking the politician's ideas and presenting them in a nice package, I'd agree they shouldn't get attribution, and giving them it would seem arbitrary when the stylists are not given similar credit.

However, many speechwriters contribute substantive ideas in addition to nicely styled language. The rule could quite easily be "Give recognition to those who contributed substance, but not to those who merely contributed style." That line may be a bit blurry, but I think it's definite enough to defeat a slippery slope argument.

If that line isn't satisfactory, then I have to ask what happens if you apply the same objection to law review articles? Thanking a dozen or two dozen staff after a 20 minute speech is nothing compared to writing a 14 page essay with 121 footnotes which continue on for another 7 pages. But I seriously doubt a law professor would say they need not cite most of their sources because there's just so many of them. Ain't nobody got time for that!

Getting back to Orentlicher's original question, "So do we let elected officials and other leaders use the words of their ghostwriters without attribution because there is a good reason that I am overlooking, or is it more about the unfair privileges of power?" Yes, there is a good reason being overlooked, and it's not because recognition would be silly. It's because plagiarism is a rule that only exists within certain contexts, primarily academia and the arts.

When someone reads a book on how to play chess and repeats the opening gambits he has learned, he's not plagiarizing their inventor, even though he gives no credit to them. It's not plagiarism to retell a joke you heard to your friends. It's not plagiarism to cook someone else's recipe without attribution. Asking why politicians can plagiarize in speeches is like asking why American football players are allowed to use their hands, when that clearly violates the rules of soccer. It's because it's a different game with different rules.

Former Editor

I think Prof. Kerr is right on this point. It is the academic setting that turns acceptable ghost writing in to plagiarism. In the academic setting we are using the paper to grade a student's analytical, research, and writing skills rather than to determine a student's true ideas on a particular topic. As such, we must know that every unquoted word is the student's own and which ideas which were the student's rather than those of another, hidden thinker. We don't (and I'd argue shouldn't) care all that much whether the student believes in their heart-of-hearts that the position they have taken is correct. A student who submits a well written and researched paper deserves a good grade, even if the professor suspects for some reason (e.g., comments made in class discussion) that the student may ultimately disagree with the position taken in the paper. In other contexts, we care about the position that the speaker has taken and judge them on their adherence to it, not on whether they first had the idea or first used a particular expression. It is enough for us that the speaker adopted the language to express their position and did so with the consent of the original author, often in exchange for other compensation that the author deems adequate in place of personal attribution or thanks.

I'll give another example of where some level of "ghostwriting" is generally accepted because we care more about content than whose pen was first dipped in the ink: judicial opinions. Judicial opinions are frequently the result of extensive collaboration between the judge and the judge's law clerk or clerks. In many chambers, the first draft of an opinion is done by the clerk. Even where the judge writes the first draft, clerks are frequently responsible for substantive additions to the opinion (after securing the agreement of the judge with what will be added, of course). Even after many rounds of editing and changes by the judge, those opinions will inevitably contain sizable swaths of text and ideas generated by the clerks. Yet, law clerks are almost never credited for their contribution to a particular judicial opinion (and shouldn't be). The clerks also know they aren't going to be credited in that way going into the job and accept that lack of attribution for other forms of compensation (money, prestige, etc.). Does this make most judges serial plagiarists? I rather doubt it.

Jeff Harrison

I was mainly kidding but goodness knows there is not kidding on blogs. Putting aside style which I think we agree can be very imaginative but is ultimately a way to market the "product" and turning to ideas. And getting back to the original question of whether there is good reason not to provide attribution, I guess I think of it the other way around -- what is the good reason to provide attribution. (Ironic isn't it that the ideas themselves could not be copyrighted and could be used by anyone without attribution or permission.) One reason is to avoid the slippery slope I find myself sliding down. Does the official then get credit for hiring clever speech writers? Since virtually all ideas are derivative, does the speech writer need to then identify his or her influences, teacher, etc. I suppose to me, the speech writer is a hired hand. And suppose the idea is tweaked a little by another adviser or the official him or herself. I guess I just see the speech writer as part of the official's team - a hired hand among many. And, as others have said, no one assumes, and, in fact, most of us hope that official is not so isolated as to be ignoring the suggestions of others. There is hardly any theft here. It's just a contract -- you come up with ideas and I may use some of them.

Derek Tokaz

Former Editor,

I think you (or perhaps I should attribute it to Orin) adequately explain why plagiarism is a relevant concept for classrooms.

But why is it relevant for academic articles published by professors?

In the same vein as student work, academic articles are used, at least in part, to evaluate professors. But I don't think that quite hits the mark. Would we allow a professor to put a footnote at the start of an article saying "Not intended for professional evaluation purposes," and then just cite or not cite as he pleased?

We would also probably cry foul if an op-ed author (professor or not) plagiarized another op-ed. But don't we care about the position being taken, rather than the author showing his work?

David Orentlicher

Thanks for all of your comments. They’re quite helpful in thinking through my question. It sounds like some commenters are saying that it’s generally okay to use other people’s writings without attribution as long as the original author agrees—except when the user is a student who is being evaluated by a teacher.

But that doesn’t seem right. As Derek suggests in his most recent post, if I claimed authorship of song lyrics, a book, a play, or many other writings after paying others to write them for me, I think that would be wrong. And again, even though the author agreed to the arrangement, the public would still be wronged by being misled into thinking that I wrote the material.

Or here’s another take on the comments. Most of the focus has been on the speechwriter rather than other ghostwriters. So maybe people are saying that students must always attribute, whether or not they have permission to use without attribution, speakers need not acknowledge their speechwriters if they have permission to use without attribution, but book authors and some (most?) other classes of writers must always attribute.

I think some of the comments about the speechwriter’s role seriously underestimate the contributions of many speechwriters and other ghostwriters. Those characterizations of the ghostwriter’s role sound more like the role of an editor. Also, the judge’s opinion would represent an example of Orin’s institutional speaker, so it wouldn’t help us with people speaking or writing for themselves.

A question we haven’t considered is whether it’s appropriate for the user to extract agreements by ghostwriters to waive attribution. People with power can extract all kinds of concessions from their employees, but that doesn’t mean it’s morally right to do so.

Jeff Harrison

Interesting and I have a couple of thoughts neither of which may be all that relevant. When you put the issue like this: "A question we haven’t considered is whether it’s appropriate for the user to extract agreements by ghostwriters to waive attribution" it suggests an obvious answer. After all, we do not want anyone to extract anything. Suppose the talented ghostwriter, who prefers to remain anonymous to avoid being linked to one political position or another, "extracts" a very high salary from the person who will actually utter the words. I think the notion that ghostwriters are unhappy may not be accurate. In fact, I misunderstood the initial post to be posing the question of whether the public had a right to know who actually thought of an idea. For me it is enough that the official has made the idea his or her own.

I agree about the song lyrics, books and plays point but to not allow the author to sell the rights to claim ownership to someone else would seem to take away some of the author's property. Would it be a rule of inalienability? -- no one may sell the right to someone else to claim authorship of a work the first person produced. It seems unfair to the author and I am not sure I understand the rationale for preventing the sale.

Derek Tokaz

"So maybe people are saying that students must always attribute, whether or not they have permission to use without attribution, speakers need not acknowledge their speechwriters if they have permission to use without attribution, but book authors and some (most?) other classes of writers must always attribute."

I don't think that's what I'm saying.

Students must always attribute because that's the rule of the classroom. Though, I will point out an exception to this rule. A student is called on in class to argue a point, and does so quite compellingly. On the exam, the same or similar issue is presented, and a second student recalls the first student's words in class. He repeats the argument, though largely paraphrased, and does not give any credit to the first student. Plagiarism? I think not, and it's the sort of exception that proves the rule. Exams have different rules than papers.

Regarding speakers, I maybe disagree. I think the normal arrangement implies a lack of attribution. If David means they need express permission, then I disagree. If just any sort of permission, then I think they have it from the start. And, it actually goes beyond that. Speechwriters understand that they are not to claim any credit without permission. We had numerous speechwriters as guests in a speech writing class I took last year (including Jon Favreau and Lindsay Hayes), and there's not a chance any of them would claim any particular part of a speech. Again, the rules here are different. We understand how political speech works, and we're not evaluating politicians the same way we evaluate students. We care only if they get the right answer, not how they got it or if they did the work -- a politician who copies ideas is every bit as good.

Speakers Part 2: Where things get messy is politicians borrowing language from other speakers without attribution. I'm of the opinion that this is okay, because all I want from my politicians is for them to possess and implement good ideas. I also know that I'm possibly in the minority here, given the criticism politicians get when they do this. But perhaps that's not so much outrage over plagiarism as it is the poor state of politics where we pillory the opposition for even the most minor of infractions.

Moving on to books, yes, I think they must attribute. However, there seems to be a fair number of authors who don't give attribution. And then there's also authors who give minimal attribution. For instance, How to Make Love Like a Porn Star has Jenna Jameson's name quite large on the cover, while Neil Strauss's name appears almost as an after thought -- yet I think we can figure out who did most of the writing. This seems to be a bit of fraud, even though Strauss would have agreed to the arrangement. As David pointed out, the harm is not just to the original author, but also to the public.

It's the nature of that harm which makes plagiarism in the arts an issue. I'm sure others will have better digested thoughts on this, but it seems to me that the reason why plagiarism is okay in speeches but not okay in books is because originality is at the heart of art's value. A politician who steals ideas from others is, at the end of the day, still a good politician. An artist who steals isn't really an artist at all -- the job is to create, not to present the creations of others. The person may be a great entertainer, but that's not quite the same thing, and that's why we don't mind bands playing cover songs.

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