Recently, an article from The New York Times Magazine caught my attention because I received it from both my running buddy and my wife, the latter being a writer. In Who is the Bad Art Friend?, Robert Kolker introduces us to Dawn Dorland Perry (nom de plume, Dawn Dorland) and Sonya Larson — two members of Boston writing circles who would wind up as legal adversaries after the publication of Larson’s short story The Kindest.
Background
Dorland formed a “secret” and “private” Facebook group centered around her altruistic organ donation — a kidney donation that was destined for someone she didn’t know and might never meet. Larson claims she was added to the group without her knowledge (which is possible). One day, Dorland posted in the group a letter she planned on sending to the undetermined recipient of her kidney. Larson didn’t engage with the post, but instead wrote a story about kidney donation and narcissism called The Kindest. It appears that the story incorporated not only the “plot” of Dorland’s life, but also words from the letter that Dorland had posted on Facebook. Larson ended up finding a publisher and was going to be part of a citywide literary event in Boston. That upset Dorland because she hadn’t been consulted or told by anyone — and reportedly, she was deeply wounded by such conduct by someone she thought was a friend. Ultimately, Dorland through her first attorney sent a cease and desist letter to Larson.
Larson responded to the letter with a declaratory judgment action filed in federal court in Boston against Dorland and her attorney for defaming Larson (allegedly for misrepresenting copyright law) and for tortious interference (for scaring off the Boston-wide reading of Larson’s story). Dorland as you would expect counterclaimed for copyright infringement but also translated that “betrayed by a friend” allegation into a cause of action: emotional distress.
Analysis
This case is so interesting in so many ways. Rather than rehashing what all the fine journalists (and countless Twitter contributors) have opined, consider the following:
- Transformative Work: The Times Magazine article talks about whether Larson’s work is transformative of the letter. As we recently wrote, Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith established in the 2nd Circuit (persuasive but not binding on the federal court in Massachusetts) that transformation has to be more than simply reprinting a photograph. A fair question is whether the Andy Warhol decision translates or even applies to infringement of text, but I’d argue that the takeaway is that re-printing words from the prior work has to be justifiable. That is, “transformative” for copyright purposes requires the new work to be some kind of parody, satire, or commentary. It has to serve some other purpose and reflect the work that’s being incorporated for a new purpose — and perhaps in this case it does because of….
- Life v. Art: The NY Times reports that in a “smoking gun” message produced during the lawsuit’s discovery phase, Larson described Dorland’s original Facebook post as “so perfect.” She admitted that she had wanted to change the letter, but she “couldn’t.” Perhaps, the actual words of Dorland’s purloined letter were necessary to provide the very thing on which Larson was commenting: the letter, used “as is,” precisely portrayed its writer as altruistic and (unintentionally) narcissistic and needy. This cuts both ways: using the letter arguably is unauthorized, infringing conduct, but commentary on the letter and its writer might be transformative and might require use of the letter itself.
- Display v. Publish: One might think that posting the letter on Facebook, whether to a private group or otherwise, constituted “publishing” the work, so that Dorland should not be surprised that Larson felt free to use the letter. However, posting something on Facebook is displaying, not publishing. In order for content to be considered published, it has to be provided in a manner that the end user is invited to download the work, or buy the book, or keep it in some other fashion. The letter that Dorland posted, which was eventually registered for copyright, was merely displayed and therefore unpublished, and unpublished works are entitled to greater protection under the fair use analysis.
- Hurt Feelings: A lot of the counterclaim is wrapped up in what a bad friend Sonya Larson was. Normally emotional distress is thrown in at the end of a complaint, as part of throwing in the kitchen sink of possible claims — but here, such dramatic fact allegations are made to support the counterclaim for intentional infliction of emotional harm.
- Saving Face: The Times article said that the parties had first sought to resolve the matter for $5,000, then $10,000, then $15,000, and now they can’t resolve it. If this were something that really could have been resolved for such a relatively little amount of money, why are they litigating it? It must be that both of them are now not just emotionally, but financially, invested in the lawsuit.
- Unintended Consequences: This case, as a whole, reminds me of another story: a documentary from 2012 called The Queen of Versailles. That film started out as a self-aggrandizing fluff piece about a very wealthy family and their lavish lifestyle. Turns out, they built their wealth on vacation home “timeshares,” which collapsed with the rest of the subprime real estate loan market in 2008. This fabulously wealthy family was suddenly dirt poor, and their downfall was captured by a third party. They tried to stop the release of the documentary because it now cast them in a negative light. If Larson’s story had said nice things about Dorland’s altruistic organ donation, would Dorland have hired a lawyer?
Normally I confine myself to writing about decisions that have been rendered by a court. In this case, I jumped the gun because the case could (and, perhaps, should) be settled before going to trial. Personally, I think there’s a lot of validity in a writer taking whatever facts, whatever situations, whatever life stories they come across. On the other hand, Larson seems to have crossed the line of using her observations of life, because she used Dorland’s letter as well. It’s one thing to be inspired by someone else’s life story or facts; but you’d better have a very good excuse for being “compelled” to use someone else’s words.
