Is The Bad Art Friend Entitled to a Fair Use Defense?

Casey Sandalow

The kidney story has taken the online world by storm. Somehow unrelated to Squid Game, a recent New York Times article details the ongoing saga of social tension and legal warfare between Dawn Dorland and Sonya Larson, two Boston-area writers who have achieved varying degrees of literary success.[1] This twisty tale has the makings of an excellent mini-series: kidney donation, accusations of plagiarism, private gossip made public, white savior narratives, and an exclusive group called the “Chunky Monkeys.”[2] 

The story begins when Dawn Dorland decides to donate one of her kidneys to a stranger and makes a Facebook group to share her progress with family and friends. After a successful surgery, Dorland reached out to Sonya Larson, who had not reacted or responded to any of Dorland’s Facebook posts about the kidney. Larson, who ostensibly did not reciprocate Dorland’s feelings of closeness, sent courteous replies acknowledging the surgery. So far, this appears to be a classic case of fizzled friendship.

Everything changed when Dorland learned of Larson’s new short story, “The Kindest,” about a rich white woman who ‘altruistically’ donates her kidney to a stranger but clearly expects gratitude and praise.[3] “The Kindest” contains a letter similar to one of Dorland’s Facebook posts regarding her kidney donation, and I encourage you all to compare the various versions of the letters. Larson eventually acknowledged that Dorland’s letter and story had been an influence, but maintained that the story was not about Dorland. After the Boston Book Festival selected “The Kindest” in 2018 for widespread distribution, Dorland hired an attorney and commenced legal action against Larson for copyright infringement (eventually adding a claim for intentional infliction of emotional distress (“IIED”)).[4]

Things were not going well for Larson. Dorland’s threats to the Boston Book Festival were successful, and some in the literary community had accused Larson of plagiarism. While a Massachusetts court dismissed Dorland’s IIED claim, they declined to dismiss copyright claims.[5] Subsequent discovery revealed private emails and text messages in which Larson openly derides Dorland’s kidney-related social media posts and acknowledges using Dorland’s letter verbatim.

If the court determines that Dorland’s letter is protected by copyright and Larson’s letter is substantially similar, the question becomes whether or not Larson is entitled to a fair use defense. The court declined to answer this question in the motion to dismiss due to insufficient factual information.[6] As new information emerges, we may have a better sense of whether Larson’s fair use argument has merit.

To determine whether fair use applies, a court must consider “(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.”[7]

The first fair use factor (“the purpose and character…”) is likely dispositive in this case. Although Larson’s use was clearly commercial, that fact does not itself create a presumption against fair use.[8] Larson will need to prove that her use of Dorland’s letter was sufficiently transformative, adding something new that does not supersede the original work.[9] Larson is confident in this point, asserting that Dorland’s “letter, it wasn’t art! It was informational. It doesn’t have market value. It’s like language that we glean from menus, from tombstones, from tweets.”[10] While somewhat persuasive, this argument seems to ignore the fact that unpublished letters have long been considered copyrightable and almost certainly qualify as some form of art.[11] Dorland’s letter was certainly informational, but it was also prose from a known writer.

An artist’s intentions are hard to determine, and even harder to apply in a fair use context. Interestingly, Larson may have a better fair use case if we give weight to Dorland’s subjective goals when posting the original letter. Dorland perceived her letter to showcase an altruistic act of kindness, a selfless choice that would save the life of a stranger. Meanwhile, the letter in “The Kindest” encapsulates the attitude of an outwardly altruistic character with secretly selfish motives in a broader white savior narrative. While Dorland does not seem to view herself this way, it is clear that Larson and other members of the Chunky Monkeys do.[12]

So who’s interpretation matters? This inquiry is complicated by the recent Second Circuit decision that Andy Warhol’s use of a copyrighted photograph was not sufficiently transformative.[13] In that case, Judge Lynch notes that “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist.”[14] Rather, there must be an objective determination that the secondary work contains something “fundamentally different and new” from the original.[15]

Dorland’s ability to win this case may hinge upon her willingness to step back and objectively assess her own actions. Donating a kidney to a stranger is inherently altruistic, but documenting that choice on social media is not. While a reasonable person may not dismiss Dorland’s kind intentions, they may also recognize that creating a Facebook group indicates attention-seeking expectations of praise and validation. In this sense, Larson does not intend to transform the character of Dorland’s letter, but is only able to claim a transformative use because Dorland maintains the altruistic intentions behind her decision. That said, this case will not come down to the subjective intentions of either Dorland or Larson. The outcome remains uncertain, but this story may confirm every anxious person’s fears that their so-called friends have a secret group chat attacking their social media presence.


[1] Robert Kolker, Who Is the Bad Art Friend?, The New York Times Magazine (Oct 6, 2021),

[2] Id.

[3] Id.

[4] Id.

[5] Larson v. Perry, No. 19-CV-10203-IT, 2021 WL 352375 (D. Mass. Feb. 2, 2021)

[6] Id.

[7] 17 USC §107.

[8] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994)

[9] Id.

[10] Robert Kolker, Who Is the Bad Art Friend?, The New York Times Magazine (Oct 6, 2021),

[11] Salinger v. Random House, Inc., 818 F.2d 252 (2d Cir. 1987)

[12] Robert Kolker, Who Is the Bad Art Friend?, The New York Times Magazine (Oct 6, 2021),

[13] Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021)

[14] Id.

[15] Id.