It is common practice for jockeys to equip horses with blinders. The effect is to narrow a steed’s field of vision to prevent it from panicking or becoming distracted by peripheral objects. Members of the legal profession tend to adhere to a similar practice. Although creativity is tolerated, our industry highly values precision. Hence, articles on intellectual property sometimes lack character. Lawyers tend to employ legalese and a bland writing style when commenting on legal issues, prioritizing directness and efficiency over the human issues in a case. Perhaps this is what makes “” so refreshing.

Published by the New 91��ɫ Times on October 5^th, 2021, “Who is the Bad Art Friend?” details an ongoing legal dispute between two writers, Dawn Dorland and Sonya Larson. In 2015, Dorland decided to donate one of her kidneys to a stranger. Before the procedure, she created a private Facebook group so she could share her experience with others. The group included close friends and family members, as well as several writers from her local community. Little did Dorland know that one such member would eventually write a story in response to the preceding. Dorland shared many personal feelings with her Facebook group, including a heartfelt . A year after her surgery, she happened upon “”, a short story by Sonya Larson about a narcissistic white woman who donates a kidney to “save” a person of colour.

There is no copyright in facts and historical events; however, writers can claim copyright in their letters if they are sufficiently original. Like Dorland, the protagonist in Larson’s narrative writes a letter to her kidney’s beneficiary. While this alone is not sufficient to give rise to a claim for copyright infringement, Dorland and the protagonist do express similar sentiments. Dorland and her lawyer sent various cease and desist letters to Larson and her publishers, but it wasn’t until Dorland happened upon an audio recording of an earlier iteration of “The Kindest” that she decided to take action. In her original version of “The Kindest”, Larson included a near-verbatim replica of Dorland’s 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.”

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.”

Following further back-and-forth, Dorland decided to sue Larson for copyright infringement and intentional infliction of emotional distress in the United States District Court for the District of Massachusetts. Dorland had received backlash from several prominent writers and members of the pair’s community, many of whom believed the damage to Larson’s professional reputation was an egregious consequence of the situation.

“Who Is the Bad Art Friend” offers little in terms of legal nuance. , her copyright infringement claim is still pending. If the case proceeds to trial, its outcome will likely rest on whether the Court believes the letter in Larson’s story is transformative or derivative of Dorland’s letter. If transformative, Larson’s appropriation may amount to nothing more than plagiarism, which is not in itself actionable; if derivative, Larson’s actions may constitute copyright infringement unless she can successfully argue fair use. Nonetheless, Robert Kolker’s article is noteworthy because it draws attention to the fact that Dorland and Larson are real people.

“Who Is the Bad Art Friend” contains the expressed thoughts and feelings of its subjects, in contrast to articles in legal journals, which typically omit such information. Because it encompasses aspects of human interest, it enables readers to become personally invested in its outcome. As such, I personally believe more legal commentators should try to incorporate elements of human interest into their articles. The Intellectual Property Journal does not need to emulate the New 91��ɫ Times, but a publication bridging the gap between the two could definitely increase interest in, and accessibility to, our profession.

The post Humanizing Copyright Infringement: “Who Is the Bad Art Friend?” by Robert Kolker appeared first on IPOsgoode.

Illustration by (Ikon Images)

Emily Xiang is a����is a����IPilogue���°����ٱ��, President of the Intellectual Property Society of Osgoode (IPSO),��and a��2L JD Candidate at Osgoode Hall Law School.��

������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. ��

��and��, 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 tur����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 i����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. ������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.” ��

��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����addressed from a kidney donor��to a recipient��that, to varying degrees, bears similarities to��the����Ms. Dorland��originally posted on Facebook. ��

On June 10,��2018, Ms. Dorland����her donor letter with the U.S.��Copyright Office.��Ms. Larso������legal actio����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����(Civil Action No. 19-cv-10203-IT),��Ms. Dorland’s��copyright infringement��claims��were allowed, while her claim for��intentional��inflictio����of��emotional��distress��was 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-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��“—a legal defense that��allows��users��to make limited use of��a����original work without seeking permission. In the further alternative, Ms. Larson may also��argue��that the story contained i����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 ca����and cannot��be 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 dispute��by many others with bated breath.��A recent����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��, concluding with: “At any moment, we all can retreat into our own echo chambers and decide on our versions of the truth—which can tur����any of us into bad art friends.”��

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The post The Narrative of One’s Life: A Sneak Peek Into the “Who is the Bad Art Friend?” Controversy appeared first on IPOsgoode.