Humanizing Copyright Infringement: “Who Is the Bad Art Friend?” by Robert Kolker

Humanizing Copyright Infringement: “Who Is the Bad Art Friend?” by Robert Kolker

Lamont Abramczyk is a 3L JD Candidate at Osgoode Hall Law School, enrolled in Professor David Vaver’s 2021-2022 Intellectual Property Law & Technology Intensive Program. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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 “Who Is the Bad Art Friend?” so refreshing.

Published by the New York Times on October 5th, 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 letter addressed to her kidney’s beneficiary. A year after her surgery, she happened upon “The Kindest”, 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 wasnt 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. Although Dorland’s claim for intentional infliction of emotional distress has been dismissed, 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 York Times, but a publication bridging the gap between the two could definitely increase interest in, and accessibility to, our profession.