Hey all,
If you spend a bad amount of time on Twitter like I do I’m sure you’ve seen the buzz about Bad Art Friend, a piece in the NYT Mag about a very convoluted and petty feud between two authors. One of the main points of contention in the article is an allegation of copyright violation. Essentially, one of the authors (Dorland) wrote a very self-congratulatory letter about a kidney donation on Facebook. The other author (Larson) saw that post, and was inspired to write a story where one of the characters donates a kidney. In the story, one of the characters (who seems to be based on Dorland), writes a letter very similar to Dorland’s post. I’ve included Dorland’s letter and the two versions that appeared in Larson’s story (the second version includes changes Larson made after hearing that Dorland was unhappy about the inclusion of the letter):
Dorland’s letter:
Personally, my childhood was marked by trauma and abuse; I didn’t have the opportunity to form secure attachments with my family of origin. A positive outcome of my early life is empathy, that it opened a well of possibility between me and strangers. While perhaps many more people would be motivated to donate an organ to a friend or family member in need, to me, the suffering of strangers is just as real. … Throughout my preparation for becoming a donor … I focused a majority of my mental energy on imagining and celebrating you.
Larson’s audio version of the story:
My own childhood was marked by trauma and abuse; I wasn’t given an opportunity to form secure attachments with my family of origin. But in adulthood that experience provided a strong sense of empathy. While others might desire to give to a family member or friend, to me the suffering of strangers is just as real.
The updated version that Larson published after speaking to Dorland:
I myself know something of suffering, but from those experiences I’ve acquired both courage and perseverance. I’ve also learned to appreciate the hardship that others are going through, no matter how foreign. Whatever you’ve endured, remember that you are never alone. … As I prepared to make this donation, I drew strength from knowing that my recipient would get a second chance at life. I withstood the pain by imagining and rejoicing in YOU.
Dorland is now suing Larson for copyright infringement, and Larson is countersuing for defamation and tortious interference. It’s a pretty long article (but a fun read!) so I’ve included the excerpts about infringement here:
By arguing what she did is standard practice, Larson is asking a more provocative question: If you find her guilty of infringement, who’s next? Is any writer safe? “I read Dawn’s letter and I found it interesting,” she told me. “I never copied the letter. I was interested in these words and phrases because they reminded me of the language used by white-savior figures. And I played with this language in early drafts of my story. Fiction writers do this constantly.”
In writing, plagiarism is a straight-up cardinal sin: If you copy, you’re wrong. But in the courts, copyright infringement is an evolving legal concept. The courts are continuously working out the moment when someone’s words cross over into property that can be protected; as with any intellectual property, the courts have to balance the protections of creators with a desire not to stifle innovation. One major help to Dorland, however, is the rights that the courts have given writers over their own unpublished letters, even after they’re sent to someone else. J.D. Salinger famously prevented personal letters from being quoted by a would-be biographer. They were his property, the courts said, not anyone else’s. Similarly, Dorland could argue that this letter, despite having made its way onto Facebook, qualifies.
Let’s say the courts agree that Dorland’s letter is protected. What then? Larson’s main defense may be that the most recent version of the letter in “The Kindest” — the one significantly reworded for the book festival — simply doesn’t include enough material from Dorland’s original to rise to the level of infringement. This argument is, curiously, helped by how Larson has always, when it has come down to it, acknowledged Dorland’s letter as an influence. The courts like it when you don’t hide what you’ve done, according to Daniel Novack, chairman of the New York State Bar Association’s committee on media law. “You don’t want her to be punished for being clear about where she got it from,” he said. “If anything, that helps people find the original work.”
Larson’s other strategy is to argue that by repurposing snippets of the letter in this story, it qualifies as “transformative use,” and could never be mistaken for the original. Arguing transformative use might require arguing that a phrase of Larson’s like “imagining and rejoicing in YOU” has a different inherent meaning from the phrase in Dorland’s letter “imagining and celebrating you.” While they are similar, Larson’s lawyer, Andrew Epstein, argues that the story overall is different, and makes the letter different. “It didn’t steal from the letter,” he told me, “but it added something new and it was a totally different narrative.”
Transformative use most often turns up in cases of commentary or satire, or with appropriation artists like Andy Warhol. The idea is not to have such strong copyright protections that people can’t innovate. While Larson may have a case, one potential wrinkle is a recent federal ruling, just earlier this year, against the Andy Warhol Foundation. An appeals court determined that Warhol’s use of a photograph by Lynn Goldsmith as the basis for his own work of art was not a distinctive enough transformation. Whether Larson’s letter is derivative, in the end, may be up to a jury to decide. Dorland’s lawyer, meanwhile, can point to that 2016 text message of Larson’s, when she says she tried to reword the letter but just couldn’t. (“That letter was just too damn good.”)
I think the taking of the letter might be hard for Larson to justify. While the updated version seems transformative, the version used in the audiobook seems too similar for the court to overlook. However, everyone involved in this story comes off pretty terrible, so I think the big takeaway is that they are both Bad Art Friends.
Communications Law