In October 2021, Robert Kolker published a longform feature in The New York Times Magazine with the title "Who Is the Bad Art Friend?" In his piece—which sparked widespread discussion online about the ethics of altruism, art, and friendship—Kolker describes a feud that erupted between two writer friends-turned-enemies, Dawn Perry Dorland and Sonya Larson.

The gist is this: Dorland donated one of her kidneys to a stranger in 2015. On July 7, 2015, Dorland shared in a private Facebook group a letter she had written to the anonymous donee. In the letter, Dorland expressed her motivations for becoming a donor, emotions surrounding the donation, and wishes for the recipient. Larson, who was one of the members of the private Facebook group, wrote three versions of a short story, "The Kindest," that relied on Dorland's letter to varying degrees. "The Kindest" was met with a modest amount of success, winning some awards and getting published in journals and as an audiobook. Dorland discovered "The Kindest" and noticed that her letter had been copied. She hired a lawyer and began writing to publishers and periodicals, including the New York Times, to tell her story. Larson filed a lawsuit against Dorland alleging defamation and intentional interference with business relationships. Dorland countersued for copyright infringement.

On September 14, 2023, Judge Indira Talwani of the U.S. District Court for the District of Massachusetts brought "Kidneygate" to an end by granting summary judgment in favor of Larson on her fair use defense to copyright infringement, and in favor of Dorland on Larson's claims of defamation and intentional interference. This article discusses the facts and opinion as they relate to Dorland's copyright infringement claim and Larson's ultimately successful fair use defense.


Dorland Shares the Letter She Wrote to Her Kidney Donee

Dorland donated her kidney through a "nondirected donation," meaning that she did not donate her kidney to a specific person; instead, it went to whomever needed it through a "donation chain." Dorland shared her experience with friends through a private Facebook group, where she posted a letter she had written to the anonymous ultimate recipient of her kidney. The letter was also "shared widely around the UCLA transplant team."

Larson was in the Facebook group and read Dorland's letter. She began writing a short story about a nondirected kidney donation shortly thereafter.

Larson Writes "The Kindest," Copying Dorland's Letter

"The Kindest" follows Chuntao, a Chinese American woman who drunkenly crashes her car into a tree and survives after receiving a kidney transplant from a living donor. During recovery, Chuntao receives a handwritten letter from the donor, Rose, expressing a desire to meet Chuntao. Chuntao's husband, Bao, is honored and excited to meet Rose, but Chuntao has a mixed reaction to the letter. Reluctantly, Chuntao invites Rose over, and the story reaches its climax during her visit. As Rose arrives, Chuntao asks Bao "She's the kindest bitch on the planet?" And later Chuntao thinks, "What is this, this white woman, crying on my couch? Crying to me. I felt bad for her, but I also wanted to slap her."

There is no question that Dorland's letter inspired "The Kindest." In a text message to a friend, Larson wrote that "The Kindest" "literally has sentences that I verbatim grabbed from [Dorland]'s letter on Facebook. I've tried to change it but I can't seem to. That letter was just too damn good."

Larson Shares and Publishes "The Kindest" and Gradually Revises the Letter

Between 2015 and 2018, Larson wrote three versions of "The Kindest" that each featured a different version of the letter. Larson's "First Letter" contained several verbatim lines from Dorland's letter. After an audio recording of the story featuring the First Letter was published in 2016, Dorland emailed Larson indicating that she heard Larson was working on a short story about kidney donation and asking to read it. The next day, Larson drafted the "Second Letter," which contained much less content from Dorland's letter, though the structure and organization remained similar. Larson then asked her publisher to revise the story to use the Second Letter because the First Letter "includes a couple sentences that I'd excerpted from a real-life letter," and "for ethical reasons," Larson was "uncomfortable keeping those lines in." Dorland read an online version of "The Kindest" featuring the Second Letter in June 2018 and wrote to several publishers claiming that Larson had plagiarized her letter. In response to an email from one of the publishers later that summer, Larson wrote the "Third Letter," in which she altered the structure of the missive and removed almost all language that also appeared in Dorland's letter.

Larson Sues Dorland, Dorland Countersues Larson, and The New York Times Magazine Publishes "Who is the Bad Art Friend?"

On January 30, 2019, Larson sued Dorland in the U.S. District Court for the District of Massachusetts, claiming that Dorland had intentionally interfered with Larson's business relationships with publishers and had defamed her by accusing her of plagiarism. Dorland brought a counterclaim for copyright infringement. Ultimately, after the New York Times Magazine article about the dispute went viral, both parties moved for summary judgment. On September 14, 2023, the court granted summary judgment in favor of Larson on her fair use defense to copyright infringement but rejected her claims that Dorland had defamed her and wrongfully interfered with her business relationships.

Opinion: Copyright Infringement & Fair Use

Dorland asserted that all versions of "The Kindest" infringed the copyright in her 2015 letter. Larson claimed that the Third Letter is non-infringing because it is not substantially similar to Dorland's letter, and that "The Kindest" featuring any version of the letter was protected by fair use.

To make out a claim for copyright infringement, Dorland needed to show that she owned a valid copyright in the letter and that Larson copied original elements of the letter. To show copying, Dorland had to establish that Larson "actually copied the original work" and that the copying was "so extensive that it rendered the infringing and copyrighted works 'substantially similar.'"

The parties did not dispute that Dorland owns a copyright in her letter, which Dorland had registered on June 10, 2018. The only question was whether the letters in "The Kindest" were substantially similar to Dorland's letter. The court considered substantial similarity as to each letter individually, finding that the First Letter was substantially similar, the Second Letter used "more than necessary," and the Third Letter was not substantially similar.

The First Letter Was Basically Identical

The court found the First Letter to be substantially similar to Dorland's letter. Of Dorland's letter, which was 381 words, the First Letter copied verbatim approximately 100 words and closely paraphrased approximately 50 words. In analyzing the content of those excerpts, the court noted how they "gave the Dorland Letter its particular character," listing as examples: "My gift . . . trails no strings"; "I [focused/channeled] [a majority of] my [mental] energ[y/ies] into imagining and celebrating you"; "I accept my level of involvement . . .even if it is none"; "To me the suffering of strangers is just as real"; and "I [wasn't given/didn't have] the opportunity to form secure attachments with my family of origin." Then, the court compared the letters' identical structure: introduction to the donor (including her race, age, and gender); explanation of "how the donor discovered the need for kidney donation"; disclosure of "the donor's traumatic childhood"; paragraph "focus[ing] on the future recipient"; paragraph "wishing the recipient health and happiness"; and conclusion "expressing a desire to meet."

In view of the amount of copied text, similar character, and identical structure, the court held that the First Letter "took 'material of substance and value' from the Dorland Letter in such a quantity and in such a manner that the points of similarity outweigh the points of dissimilarity."

A Reasonable Jury Could Return a Verdict Either Way as to the Second Letter

The court was agnostic as to the Second Letter, finding that the resemblance was "not so striking that no reasonable juror could conclude that the two letters are meaningfully different." The letters were organized the same structurally, but less language was copied verbatim. Still, the Second Letter closely paraphrased Dorland's letter.

The Third Letter Was "Notably Different" and Not Substantially Similar

As to the Third Letter, the court held that it is not substantially similar to Dorland's letter and therefore not infringing. The Third Letter "contains almost no verbatim or closely paraphrased language," a "notably different" organization and tone, and a "new introductory paragraph and substantially revised concluding paragraph." Thus, on balance, "the 'points of dissimilarity' . . . exceed[ed] any remaining points of similarity."

Regardless of Infringement, Larson's Letters Were Protected by Fair Use

Even though the court found the First Letter to be substantially similar and the Second Letter to be potentially substantially similar, these infringing uses were nevertheless shielded from liability by the doctrine of fair use, resulting in a judgment for Larson.

Fair use requires a court to weigh various factors, including (1) the purpose and character of the use, including whether such use is commercial, (2) the nature of the copyrighted work, (3) the amount and substantiality of the copying, and (4) the effect of the use upon the potential market for or value of the copyrighted work. The first and fourth factors tend to receive the most attention, with the fourth factor often held out as the most important, and the first factor close behind.

Factor 1: The Purposes of Larson's Letters Were Transformative as Criticism

Dorland argued that the letter as it exists within "The Kindest" serves the same purpose as Dorland's letter, namely, to "share[] the donor's motivations and desire to connect in the shared experience with the recipient of the organ." Larson argued that "The Kindest" made transformative use of Dorland's letter by using it "'to introduce the character, Rose[,] to the character, Chuntao' in a 'fictitious' story."

The court found that the letter in "The Kindest" did more than what Larson proposed: it was used "to starkly contrast an altruistic kidney donor's view of her own actions with the view a recipient may have of the same actions." In this sense, Larson's letters did not "mirror the tone" of Dorland's letter, "seek to build on Dorland's thoughts, emotions, and feelings about altruistic kidney donation," or "seek to provide factually accurate information about the process of living kidney donation." Instead, "The Kindest" could not be read as "anything other than a criticism of an altruistic donor's choice to reach out to a kidney recipient." For example, Chuntao "seems to harbor resentment and pity—bordering on contempt—for her donor's act of charity." Thus, the letters were "at opposite ends of the spectrum of writing about kidney donation" and provided "a strong indication that the two artists had diverging motivations in creating their respective pieces."

The court considered the commercial nature of "The Kindest" but held that it was not strong enough to outweigh the "entirely orthogonal purpose" of Larson's story.

Factor 2: Dorland's Letter Was Factual and Creative, and Already Published

Creative works enjoy broader copyright protection than factual material, and fair use gives stronger protection to unpublished works, in recognition of a copyright owner's "right to control the first public distribution" of the work.

The court found Dorland's letter to be somewhere between factual and creative. "[W]hile it used creative language to express Dorland's ideas, emotions, and feelings, the [l]etter was not an artistic representation but rather a communication meant to convey factual information about non-directed kidney donation and Dorland's own actions."

The court further found that Dorland's letter had already been published. Not only had "dozens of people" viewed Dorland's letter on Facebook (despite it being in a private group), but the UCLA transplant team had also read and "shared widely" the contents of her letter. At no point did Dorland object to the UCLA transplant team's circulation or attempt to control the dissemination. To the contrary, Dorland had encouraged the sharing of her post.

Factor 3: First and Second Letters Copied Too Much, Third Letter Did Not

The third factor considers the amount and substantiality of the material taken from the original work. Because the three versions of the letter appearing in "The Kindest" copied differing amounts from Dorland's letter, the court considered this factor separately for each version.

As expected, the First Letter contained significant overlap, especially in copying the focal points of Dorland's letter, weighing against a finding of fair use. The Third Letter was the opposite, containing so little of Dorland's letter that it weighed in favor of a finding of fair use. The court held that the Second Letter weighed against a finding of fair use. Although substantial similarity was a toss-up, reading the facts in the light most favorable to Dorland, the court found that the close paraphrasing and several verbatim copies in the Second Letter, including several key phrases, were sufficient to weigh against a finding of fair use.

Factor 4: "The Kindest" Did Not Replace the Market for Dorland's Letter

The court noted that "[t]he market-effects factor is the 'most important' one." This factor considers whether an allegedly infringing work causes economic losses that conflict with copyright law's "basic objective" to "provide authors with exclusive rights that will spur creative expression."

Since criticism can exist alongside an original, the court determined that "The Kindest" did not "suppress demand for the original." To the contrary, the court found that "The Kindest," if anything, "increased demand for Dorland's original letter and her own perspective on kidney donation."

Weighing the Factors Shows Larson's Letters Were Fair Use

Because at least three of the four factors weighed in favor a finding of fair use, including the most important fourth factor, the court found that all versions of "The Kindest" were protected by fair use.

"Bad Faith" Would Not Foreclose a Finding of Fair Use

Finally, Dorland argued that Larson made "'bad faith' personal comments about [her] in group chats with friends and other writers" and as a result should be denied the opportunity to assert fair use. The court disagreed: "copyright law is not concerned with a person's generally good or bad character—but rather whether that person obtained copyrighted material using 'egregious' and inappropriate means." Dorland shared her letter with Larson voluntarily. The fact that "Larson proceeded to privately ridicule Dorland over the letter's contents . . . does not change Larson's entitlement to a legal defense."

The case is Larson v. Perry, No. 1:19-cv-10203-IT (D. Mass. Sept. 14, 2023).

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