Here is Bad Art Friend explained in a legal overview and summary. One of my dear friends told me about an article called Who Is the Bad Art Friend from the New York Times that was rocking the writing world. The lengthy article from the NYT details how writer Dawn Dorland ended up suing writer Sonya Larson for copyright infringement.
The Agony over Dorland v. Larson
- 1 The Agony over Dorland v. Larson
- 2 Bad Art Friend Summary
- 3 The Case of the Bad Art Friend Explained
- 4 Maureen’s Legal Bottom Line: Bad Art Friend Explained
This is a series of case analyses that you might find interesting.
Ms. Dorland donated a kidney and has, in turn, kind of become a spokesperson for live-organ donations. She did not know the recipient, nor did she have a reason (other than because she felt she needed to) for the donation. Her friend,* Ms. Larson, wrote a short story named “The Kindest” about a woman named Chuntao, who needed a kidney, and Rose, who live-organ donated a kidney.
* Ms. Larson has since stated that Ms. Dorland was never her friend.
Bad Art Friend Summary
Reading the Bad Art Friend from the New York Times article is probably the best summary of what happened. But the short version is that Ms. Dorland created a private Facebook group about her experience of live-organ donation. Several members of GrubStreet, a Boston-area writing center, were invited to said group. She posted several updates, including a letter she penned to the donee of her kidney.
Somewhere along the way, she wasn’t getting the accolades that she wanted, so she began making inquiries, which included emails to Ms. Larson. They had a cool-polite exchange. What Ms. Dorland didn’t know at the time was that Ms. Larson wrote a story called “The Kindest,” which, let’s just say, wasn’t very kind to Rose, the white woman who donated her live-organ donated her kidney.
Rose is basically depicted as having a white savior complex, and when she doesn’t get the recognition she thinks she deserves, she actively goes out to seek it. The issue with this story, other than that Ms. Larson “borrowed heavily” from Ms. Dorland’s life story, is that she used, almost verbatim, Ms. Dorland’s letter to the donee that was posted in the Facebook group.
Let’s not forget about GrubStreet. Behind the scenes, Ms. Larson was emailing other members, who basically acted like a bunch of high school assholes and made fun of Ms. Dorland behind her back.
Ms. Dorland basically became pissed off at some point and started contacting a bunch of people when “The Kindest” started to get some traction. Several venues pulled the publication of the story in response.
Litigation ensued. First, Ms. Larson filed a lawsuit against Ms. Dorland and then on the heels, Ms. Dorland filed a copyright and intentional infliction of emotional distress (IIED) claim against Ms. Larson. The IIED claim was later dismissed.
The Case of the Bad Art Friend Explained
1. Copyright Law
First, it should be noted that copyright is a constitutional right under Article I, Section 8, Clause 8 – Patent and Copyright Clause of the Constitution. “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
2. The Burden of Proof
In lawsuits, which include criminal trials, one (or more) sides have the burden of proof. That basically means that whoever holds the burden must show that the other side did something. We hear “beyond a reasonable doubt” a lot, which is a very high burden.** Most civil trials are preponderance of the evidence, which means 51%. The burden is a sticky subject, and many attorneys do not understand the concept properly. But that’s a discussion for another day.
In this case, the burden of proof means that Ms. Dorland must prove that Ms. Larson committed copyright infringement. Ms. Dorland holds the burden because she’s the one who sued Ms. Larson. (Ms. Larson also holds the burden for her lawsuit. But we’re talking about the copyright part of it here.)
3. Legal Standard
In order to prove a copyright infringement, Ms. Dorland must show to the jury:
(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original.
This is known as the Feist test. Courts and attorneys like to use these tests, which never existed before until a court case just kind of pulled it out of their asses. Then, we name them after the court case that created the test. In this case, it refers to Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Attorneys love their tests. Nothing exists without tests, except more tests. And laws, which are all tests. Tests, tests, tests.
Ms. Larson didn’t contest (1), so for the people in the back row, that leaves (2).
(2) also has a two-step test:
(a) the plaintiff must prove that the defendant copied the plaintiff’s copyright work as a factual matter, either directly or through indirect evidence, and
(b) the plaintiff must prove that the copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works “substantially similar.”
Ms. Larson also didn’t contest (a). That leaves whether Ms. Larson’s words were “substantially similar” to Ms. Dorland’s letter.
If you head back to the Bad Art Friend NYT article, the author wrote out Ms. Dorland’s letter and an audiobook version that Ms. Larson used. (I was unsure what the text of the written story was.)
In the First Circuit, where this case will be tried, there is a “substantially similar” test. Remember how I said judges and attorneys love their tests? Two different works are “substantially similar” if a reasonable, ordinary observer (that’s you and me, because we make up the jury), would basically determine that Ms. Larsons ripped Ms. Dorland off. Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005). There are a bunch of factors that go into this, such as the length, style, intent, etc. (Factors are, in and of themselves, also a test. In fact, they call it a factors test.)
This factors test is usually left to a jury, but sometimes it can be decided “as a matter of law.” That means that there isn’t a way in hell that it didn’t happen. In this case, the judge said, yeeeeeeeah, you stole it.
** Lots of time, television shows misuse “beyond a reasonable doubt” to mean “beyond all doubt.” This phrase just means that if a jury person has any reasonable doubt that the defendant is guilty, then the defendant is not guilty.
4. Fair Use
The Feist step is what Ms. Dorland must prove that Ms. Larson committed copyright infringement. It’s important to point out here that the court said that Ms. Larson DID commit copyright infringement. That’s a very important point, actually, so I’ll repeat it. Ms. Larson stole Ms. Dorland’s stuff.
After reading the letter, you might be thinking duhhhhh.
But lots of people are going around saying “Fair Use” this and “Fair Use” that. “She didn’t do it because of Fair Use.” That’s not true. Fair Use is an affirmative defense. An affirmative defense is a justification. That means, Ms. Larson is saying “Yeah, I’m a total thief, but I had a good reason.”
I’ll repeat this concept for the people in the back row. Ms. Larson admitted to being a copyright thief. She just thinks she was entitled to steal.
This entitlement is called Fair Use.
The Motion to Dismiss said that the Fair Use analysis needs a jury because it’s “a mixed question of fact and law.” You may have heard the old saying that the judge is the keeper of the law, and the jury is the keeper of the fact. So, the jury will decide whether Ms. Larson had justification for stealing.
But, for those who love tests just as much as attorneys do, there is a Fair Use test. Unlike most named tests, this one has just a name of Fair Use, and it is:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107.
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).
I’ll give you an overview of what this test is.
(1) Purpose and Character.
Certain entities get to use stuff for free. Schools are a great example. Almost anything that they use for teaching reasons is fair game, or in this case, Fair Use. But personal use is also relatively free. That doesn’t mean you get to go around stealing MP3s and call it Fair Use. It would be more like posting something on your personal Facebook wall. But, if it’s for commercial reasons, then you are more likely to be a thief.
I most certainly think this was for commercial purposes.
(2) The Nature
The nature has to do with whether something is published or not published. In our current world of electronic everything, “published” is very wide. I mean, you can “publish” something on social media.
Ms. Larson definitely published “The Kindest” in various venues. So she loses this one too.
(3) Amount and Substantiality
The amount and substantiality … remember “substantially similar”? This is basically the same thing as the test itself for copyright. But, this factor also encompasses how much of what was taken, and how much of what was taken was the heart of the matter. So, if you take half of someone’s work, but it doesn’t make your stuff useless, then it’s okay. But you can also steal one line out of an entire book, but if it’s the last line, then no one would want to read your book.
And the court already decided that it was copyright, so Ms. Larson probably loses this too.
(4) The Potential Market
Here is where the test gets interesting, because Ms. Larson has said “transformative” use. This means, what was the impact on the market for Ms. Larson’s article as opposed to the impact on Ms. Dorland’s letter? Was it intended to impede, e.g. steal Ms. Dorland’s stuff for Ms. Larson’s own sole gain, or was it supposed to make it into something different, e.g. transform it?
This is where it gets sticky. I tend to lean toward Ms. Larson’s short story as Fair Use, even if she is a complete asshole. That’s because it isn’t concepts or ideas that are copyrighted. (That’s for patents, people.) It’s the actual words themselves that are copyrighted. And even if she did steal the entire letter, she was making it into something else, a short story.
Maureen’s Legal Bottom Line: Bad Art Friend Explained
Whether Ms. Larson had justification for being a copyright thief is for the jury to decide. Constitutional rights and copyright law aside, what Ms. Larson did was unethical. She can justify her actions all she wants, but in the end, she used, almost verbatim, someone else’s letter without so much as an email or acknowledgement. What’s worse, she was a total asshat about it. It’s the classic case of a bully, and then she racially victimized herself when she was caught with her hand in the cookie jar.
Bottom Line: If you did nothing wrong, then there isn’t a reason to hide what you did. Don’t be an asshat.
What are your thoughts about my article of the Bad Art Friend explained? Is Dawson right? Is Lawson right? Let me know in the comments! Or join in the Twitter conversation:
— Maureen is #Writing + her faithful dog Joe Paw (@joepawdog) October 18, 2021
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