Who Is the Bad Copyright Friend? (Guest Column)
Are you #TeamDawn or #TeamSonya? The internet was divided into warring camps in light of the viral New York Times Magazine article “Who Is the Bad Art Friend?” by Robert Kolker. It’s a tale as old as time: two writers locked in a bitter legal dispute over a short story inspired by Facebook posts about kidney donation. But for all the Twitter beefing vibrant discussion of the ethical dimensions of the conflict, there has been little discussion of the copyright questions at the core of the dispute.
What does the law have to say about Sonya Larson’s copying of Dawn Dorland’s letter?
All is Fair in Love and Kidney Donation
Copyright law is designed to protect — and financially incentivize — creative expression. Neither facts nor ideas are protected absent novel presentation or organization. Dorland, in pursuing a copyright claim, does not assert any form of “life rights.” She concedes she does not own her life story. Rather, she claims ownership of the unique way she conveyed her thoughts and feelings about her kidney donation.
Larson must convince the court that Dorland’s letter does not contain protectable expression or that her copying qualifies as fair use, a legal doctrine that protects “purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.” Fair use was developed by courts to provide space for creators to build upon prior art without fear of legal repercussions.
In rejecting Larson’s motion to dismiss Dorland’s copyright claim, Judge Indira Talwani of the District of Massachusetts observed the apparent surface similarity between Dorland’s letter and the letters Larson included in various versions of her short story The Kindest:
“Here, while there are certain differences between the Dorland Letter and the [American Short Fiction] and Brilliance [Audio] Letters, there are enough similarities from which a reasonable jury may conclude that the ASF and Brilliance Letters are substantially similar to the Dorland Letter. These include similarities in their protagonists, the protagonists’ thoughts and motivations, the structure of the letters, specific terms and phrases contained in the letters, and what the letter-writers are attempting to convey to the letters’ recipients.”
In other words, Dorland’s claim had a solid foundation even before Larson’s snarky texts and emails came to light via discovery. With the benefit of these messages, Dorland has ample fodder to attack Larson’s fair use defense.
A fair use analysis involves four criteria:
- Purpose and Character
First, the court will examine the “purpose and character” of Larson’s story — the why and how of her appropriation. Nonprofit educational purposes receive far more latitude than television commercials. While Larson’s story was commercialized, it nonetheless merits deference as a literary endeavor.
This is where the so-called “transformative use” comes into play. Larson argues she added significant creative elements and sufficiently transformed Dorland’s letter into original expression. But just how extensive was Larson’s remodel?
Larson argues that despite the ostensible overlap, the letters serve fundamentally different objectives — personal for Dorland, and narrative for Larson. Yet, this supposes that Dorland’s letter did not have a narrative objective — or that “Rose’s” letter lacked a personal one. One interesting detail gleaned in discovery is that “Rose” was originally named “Dawn” in The Kindest. This suggests that Larson — at least initially — may have intended for her art to hit harder. The irony is that had she stuck with “Dawn,” she would have had far more First Amendment protection as a form of parody. Just another way that art — like law — is a contact sport.
Larson’s texts and emails will not be helpful to her (note: while some have accused Dorland of subpoenaing Larson’s texts and emails, it was Larson’s choice to sue that required her to produce the material #HanShotFirst). Within the 1st U.S. Circuit Court of Appeals, evidence of bad faith can be introduced to undermine a transformative use argument. In that respect, this message from Larson to a friend is a doozy:
“I think I’m DONE with the kidney story but I feel nervous about sending it out b/c it literally has sentences that I verbatim grabbed from Dawn’s letter on FB. I’ve tried to change it but I can’t seem to — that letter was just too damn good. I’m not sure what to do … feeling morally compromised/like a good artist but a shitty person.”
This supports Dorland’s claim that Larson was drawn to the expressive elements of her letter, and that any later changes she made were legal rather than artistic in purpose. Larson is not off to a great start.
- Nature of the Copyrighted Work
Second, the court will determine how much protection Dorland’s letter merits. This factor generally receives low weight. But under existing legal doctrine, unpublished material receives greater protection out of deference to an author’s right to control the first public appearance of their expression.
“Publication” is defined under the Copyright Act as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Larson argues that Dorland published her letter for the world to see. But is a private Facebook group “the public?”
According to Dorland’s papers, the group was invitation-only and limited to close friends and family. Larson claims that the group swelled far beyond that. While this is an emerging area of law, some courts have looked to the author’s subjective expectations of privacy as evidenced by the author’s intent to keep content private, which could spell bad news for Larson if Dorland truly kept the group small.
Larson has also pushed back on the notion that Dorland’s letter contains protectable expression, telling Robert Kolker:
“Her letter, it wasn’t art! It was informational. It doesn’t have market value. It’s like language that we glean from menus, from tombstones, from tweets. And Dorland ought to know this. She’s taken writing workshops.”
But Dorland can point to several novel turns of phrase. For example, the phrase: “My gift, which begat Debbie’s, trails no strings.” A Google search for this phrase, which includes the entire Google Books archive, yields no match, which limits Larson’s ability to argue that it is a generic, uncopyrightable trope. As Dorland told Kolker: “The whole reason they want it in the first place is because it’s special. Otherwise, they wouldn’t bother.”
If the letter is deemed unpublished, Larson’s hole just got deeper.
- Amount and Substantiality of the Use
Third, courts examine the extent of copying, both quantitatively and qualitatively. While Larson calculates that only 4.5 percent of The Kindest is comprised of the letter, the more relevant inquiry is how much of Dorland’s letter is reproduced.
While the lawsuit involves at least four different publications, juxtaposing the initial publication with the original, that percentage is likely to be deemed substantial — particularly if the court determines that the close paraphrases qualify as copying. Twitter user @kidneygate put together a helpful graphic.
Quantity aside, Larson will struggle to defend the qualitative element. Not only was “trails no strings” directly lifted, but Larson’s “I channeled my energies into imagining and celebrating YOU” is nearly identical to Dorland’s “I focused a majority of my mental energy on imagining and celebrating _you_.” Similarly, the phrase “[my] childhood was marked by trauma and abuse; I wasn’t given an opportunity to form secure attachments with my family of origin” appears verbatim, down to the use of a semicolon.
Even in situations where the percentage of verbatim copying is comparatively low, such as the version of The Kindest submitted to the Boston Book Festival, courts will also look to the “total concept and feel” of a work to determine whether structure, mood, details and characterization are copied.
While on the surface, the letters are far more distinct, Dorland argues that even the later published versions bear the hallmark of her original letter. For instance, the reference to a “paired exchange” is a giveaway; online commentators have pointed out that The Kindest does not depict a paired exchange. While Larson might play this factor to a draw for the later versions, the verbatim overlap in earlier publications will likely redound to Dorland’s column.
- Effect on the Market
Fourth, the court will evaluate potential negative effects on the marketplace for Dorland’s letter. Larson characterizes Dorland’s letter as a mere Facebook post, for which there is scant market value. But in selling a story with an epistolary element derived from Dorland’s letter, Larson demonstrated the exact marketplace Dorland might have commercialized. Would her submission have been selected by the Boston Book Festival if she had excised the letter? We’ll never know.
Dorland herself expressed the fear that allowing Larson to obtain copyright protection for The Kindest, she might be legally boxed out from using her letter in her own future writings. For Larson to rebut this, she will have to trash her own piece and argue that “Rose’s” letter lacks any expressive elements.
The Kindest Court
Larson faces an uphill battle to convince a jury to join #TeamSonya. It is apparent from her texts and emails that she genuinely grappled with the ethics of appropriating the personal story of
a friend an acquaintance, and that she does not consider her work to be plagiarism. But as they say, bad facts create bad law, and taking close cases to trial risks provoking an overbroad ruling that could cramp future writers’ free expression.
The parties recently agreed to attempt to reach a settlement via mediation, and here’s hoping they find their way to a resolution. And let it be a lesson to any artist who holds a mirror up to society: Be a Good Copyright Friend whenever possible.
Daniel Novack is a publishing industry attorney and chair of the New York State Bar Association Committee on Media Law. This article reflects his personal views only. Tanvi Valsangikar is a third-year law student at Rutgers University School of Law.