The Larson v. Perry saga essentially ended with the judge’s denying summary judgment to both sides; essentially, “a pox on both your houses.”
The background of this case was famously retold in The New York Times Magazine’s “Who is the Bad Art Friend?” I also wrote about it in “Bad Friends, Inspirations, and Betrayals” in October 2021. There is also a Wikipedia page devoted to the topic. Suffice it to say: Dorland was an anonymous kidney donor who posted to a small group on Facebook a letter she had wanted to send to her recipient. Larson read the letter and was inspired to write a short story surrounding it, using large portions of Dorland’s actual letter. Dorland then began a campaign to stop Larson from publishing or promoting the story, and to render Larson unemployable. In the US. District Court for Massachusetts, Larson sued Dorland for tortious interference of contract and defamation; Dorland sued Larson for copyright infringement.
As we relayed in our article, the plaintiff adapted Dawn Dorland’s letter into a short story called “The Kindest.” The author admitted that her story was inspired by Dorland’s letter and imagined, from the kidney recipient’s perspective, what would happen if Dorland’s wish to meet the recipient came true.
After Dorland realized that Larson’s story contained Dorland’s own words (some of them rather distinctive: “this gift comes… without dangling strings”), she devoted herself to contacting people who had worked with Larson and said Larson was unethical. Dorland’s campaign had the effect of chilling future prospects for Larson (including a prestigious reading in Boston), and when The N.Y. Times Magazine published the Dorland-heavy “Who is the Bad Art Friend?,” Larson was fired.
The court went on to examine three iterations of the letter as it appeared in successive editions of The Kindest. The first used whole phrases from Dorland’s letter; the second (hastily edited when litigation was threatened) used some of Dorland’s letter; and the third (upon re-publication) was entirely re-written, incorporating only the ideas of the letter. Regardless of the redeeming third draft, the court held, the earlier two infringed on Dorland’s copyright.
Larson then argued that, even if The Kindest copied portions of the letter, she should not be liable for copyright infringement because she made fair use of the letter. Dorland countered that there was no fair use defense because the letter was never published; rather, it was shared in a private group on Facebook.
The Court burst that bubble when it said that Facebook does count as publication. Let the following be a lesson to anyone who shares anything on social media: For something to be considered “published” in court, the “publisher” does not have to be a traditional publisher. With that in mind, the court found that any exception for unpublished works that might weigh against any fair use did not apply here.
More importantly, the court found that Larson’s use was about as transformative as it gets. Taking guidance from Warhol, the purpose of the original use must be considered — and then compared to the purpose of the new use. What was the purpose of Dorland writing the original letter? It was to talk about her desire to meet the recipient of her kidney donation. In contrast, the purpose of The Kindest was to criticize that very intent of the letter, portraying its writer as entitled and self-centered.
The court said engaging in criticism is a classic, protected use — even calling criticism among the highest forms of transformativeness. Even if the works were sufficiently copied to support a claim of copying, the court said, there would be no liability because of fair use. So much for Dorland’s counter-claims.
However, Larson’s suit for defamation against Dorland was thrown out as well because nothing that Dorland said to the press included the word plagiarism. She said things like, “she took my words” — which is clearly an opinion and therefore not defamatory. Lastly, the truth is a defense in defamation. Larson did copy that letter and use it. Regardless of how the rest of the world responded to that, the court found, the opinion did not constitute defamation.
As for tortious interference — getting Larson’s reading canceled and her employment terminated — the court said that the reading was without any payment, and that Larson was fired only after The Times Magazine accurately reported that she had included portions of Dorland’s letter in the story. So, both of Larson’s claims were denied on summary judgment.
I have issue with the court’s determination that losing a prestigious reading and losing a job are not actionable damages, but appreciate the reasoning. As a practical matter, this case shows why it is relatively foolish to use whole tracts of someone else’s creative writing in your work. On the other hand, focusing on vengeance does nothing to advance Larson’s own writing career. In any event, neither party won this lawsuit.
