Illustration by (Ikon Images)
Emily Xiang is ais aIPilogue°ٱ, President of the Intellectual Property Society of Osgoode (IPSO),and a2L JD Candidate at Osgoode Hall Law School.
surroundinga 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.
and, both authors, first crossed paths sometime between 2005 and 2007 atGrubStreet—a creative writingcentrein 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 ofonerecipient, whose wife in turdonatedherkidney to a young mother in Portland. Several weeks prior to the surgery, Ms. Dorlandcreated a private Facebook group to shareher experience with friends and family, including some fellowGrubStreetwriters,oneof whichwas Ms. Larson. Following the surgery, Ms. Dorland posted ithe 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’scommented on one of her posts, asking whether she was the source of inspiration for a short storythatwasauthoredby Ms. Larson. between the two ensued,eventually escalatinginto alargerdispute, 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.”
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 aaddressed from a kidney donorto a recipientthat, to varying degrees, bears similarities totheMs. Dorlandoriginally posted on Facebook.
On June 10,2018, Ms. Dorlandher donor letter with the U.S.Copyright Office.Ms. Larsolegal actioat the start of 2019 followinga number ofattempts by Ms. Dorland to prevent publication ofThe Kindestat a book festival, and an onslaught of plagiarism allegations.In the most recent(Civil Action No. 19-cv-10203-IT),Ms. Dorland’scopyright infringementclaimswere allowed, while her claim forintentionalinflictioofemotionaldistresswas denied.
In order to,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-protectedworks ‘substantially similar’. To this second step, Ms. Larson contends that the relevant excerpts fromThe Kindestare substantiallydifferentfrom Ms. Dorland’sletter. Alternatively, sheargues that by having modified snippets of the letter, her short story should be regarded asa“—a legal defense thatallowsusersto make limited use ofaoriginal work without seeking permission. In the further alternative, Ms. Larson may alsoarguethat the story contained iThe Kindest, being generally different from the narrative of Ms. Dorland’slife,is variable enough to contributetoan altogether different meaningofthe letter in the short story.
The legal issues at hand call back into the spotlight an age-old question that courts havealwaysstruggled with answering in copyright law—where does one draw the line between when a work caand cannotbe protected? As with any infringement case, the courts must balance the protection of creators’interests and the incentivization of societal innovation.
I,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). 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” ().
The intriguing timeline of events surrounding the controversy has been followed closely by online writing communities, and the legal conclusion to the disputeby many others with bated breath.A recenton the matter went viral over theInternet, andhas kindledpassionate debate and commentary from numerous users over Twitter, many of them eager topickaside. More recently, Kolker published, concluding with: “At any moment, we all can retreat into our own echo chambers and decide on our versions of the truth—which can turany of us into bad art friends.”