Earlier this month, FiveThirtyEight reported that crossword puzzle aficionados have uncovered possible plagiarism across several widely distributed crossword puzzles. The puzzles, many of which are compiled by crossword editor Tim Parker for USA Today and Universal Crossword, repeat the elements — prompts, solutions, grid layouts, and essential skeletal themes — of puzzles published many years earlier, particularly by The New York Times.
While FiveThirtyEight and Slate have published several side-by-side comparisons of these crossword puzzles in an effort to showcase their probable plagiarism, the Volokh Conspiracy’s David Post points out that most of these borrowed elements are likely not protected by copyright. Plagiarism, the post explains, is legally distinguishable from infringement and is therefore not actionable under copyright law.
Post compares plagiarism in the crossword community to that in the academic sphere, noting that while copyright law does not always protect authors against others borrowing their works without attribution, the established norms in these groups do. At the end, he muses that these incidents either demonstrate “(a) how norm-creation wisely supplements legal rules to enforce those interests that are important to the community, or (b) how badly copyright law tracks the things that people think are important.”
Indeed, as Post’s first point suggests, norm-creation is certainly a widely successful supplemental tool to the law. However, Post’s second musing perhaps misses the mark on the intended scope of copyright law. It has been widely accepted that copyright “exists to provide creators with an incentive to create and disseminate their works publicly” by creating a short-term monopoly for authors to adequately exploit the market for their works. While copyright law is meant to create economic incentives for works that authors would otherwise be disinclined to create, the authors in Post’s examples, crossword puzzle editors and scholars, are motivated to create their works through a more direct incentive — namely, by virtue of job compensation. Copyright law shouldn’t have to create additional protections for authors who are already plenty incentivized to churn out creative works. It is for this very reason that the work-for-hire doctrine exists, granting copyright ownership to employers of creative authors rather than to the authors outright.
Under the incentive theory, copyright law is not meant to “track the things that people think are important.” Instead, where copyright protection ends, compensation serves as a means to enforce our norms and values. Indeed, since the publication of FiveThirtyEight’s expository piece, Tim Parker’s employers have announced that he “will be stepping back from his role creating puzzles … while an investigation is conducted.”