Emily Xiang is an is an IPilogue Writer, President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.
A literary controversy surrounding a copyright claim has taken over the North American online writing community, and it involves a kidney donation, a private Facebook group, and a short story.
Dawn Dorland and Sonya Larson, both authors, first crossed paths sometime between 2005 and 2007 at GrubStreet—a creative writing centre in Boston. On June 24, 2015, Ms. Dorland donated one of her kidneys in a “paired exchange”, whereby her kidney was given to save the life of one recipient, whose wife in turn donated her kidney to a young mother in Portland. Several weeks prior to the surgery, Ms. Dorland created a private Facebook group to share her experience with friends and family, including some fellow GrubStreet writers, one of which was Ms. Larson. Following the surgery, Ms. Dorland posted in the group a personal and heartfelt letter she had written to the final recipient of the surgical chain.
Exactly one year following the surgery, a Facebook friend of Ms. Dorland’s commented on one of her posts, asking whether she was the source of inspiration for a short story that was authored by Ms. Larson. A series of email exchanges between the two ensued, eventually escalating into a larger dispute, in which Ms. Dorland expressed she was “a little surprised” by the discovery, especially “since we’re friends and you hadn’t mentioned it.” Ms. Larson contended that the story was “not about you or your particular gift, but about narrative possibilities I began thinking about.”
The Kindest by Sonya Larson is a story about alcoholism, addictive thinking, and the Asian American experience. While the story itself underwent multiple revisions, each iteration of the story contains a version of a “letter” addressed from a kidney donor to a recipient that, to varying degrees, bears similarities to the letter Ms. Dorland originally posted on Facebook.
On June 10, 2018, Ms. Dorland registered her donor letter with the U.S. Copyright Office. Ms. Larson first commenced legal action at the start of 2019 following a number of attempts by Ms. Dorland to prevent publication of The Kindest at a book festival, and an onslaught of plagiarism allegations. In the most recent Larson v Perry court opinion (Civil Action No. 19-cv-10203-IT), Ms. Dorland’s copyright infringement claims were allowed, while her claim for intentional infliction of emotional distress was denied.
In order to prove copyright infringement, Ms. Dorland will need to show: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The second prong of this test contains two steps: (1) proof that the defendant copied the plaintiff’s copyrighted work as a factual matter (either directly or through indirect evidence), and (2) proof that the copying of the copyrighted material was so extensive that it rendered the infringing and copyright-protected works ‘substantially similar’. To this second step, Ms. Larson contends that the relevant excerpts from The Kindest are substantially different from Ms. Dorland’s letter. Alternatively, she argues that by having modified snippets of the letter, her short story should be regarded as a “transformative” use—a legal defense that allows users to make limited use of an original work without seeking permission. In the further alternative, Ms. Larson may also argue that the story contained in The Kindest, being generally different from the narrative of Ms. Dorland’s life, is variable enough to contribute to an altogether different meaning of the letter in the short story.
The legal issues at hand call back into the spotlight an age-old question that courts have always struggled with answering in copyright law—where does one draw the line between when a work can and cannot be protected? As with any infringement case, the courts must balance the protection of creators’ interests and the incentivization of societal innovation.
In T-Peg Inc. v Vermont Timber Works Inc., 459 F.3d 97, Lynch J. held that “two works will be said to be substantially similar if a reasonable, ordinary observer, upon examination of the two works, would ‘conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression’” (quoting Johnson v Gordon, F.3d 12, 18). However, one may “avoid infringement by intentionally making substantial alterations in the design of a copyrighted work so as to provide a substantially different expression of the idea embodied in the copyrighted work,” so long as “the points of dissimilarity not only exceed the points of similarity, but indicate that remaining points of similarity are…of minimal importance either quantitatively or qualitatively” (Concrete Machinery v Classic Lawn Ornaments, 843 F.2d 600).
The intriguing timeline of events surrounding the controversy has been followed closely by online writing communities, and the legal conclusion to the dispute by many others with bated breath. A recent New York Times article authored by Robert Kolker on the matter went viral over the Internet, and has kindled passionate debate and commentary from numerous users over Twitter, many of them eager to pick a side. More recently, Kolker published an addendum to his article, concluding with: “At any moment, we all can retreat into our own echo chambers and decide on our versions of the truth—which can turn any of us into bad art friends.”