A District Court Judge in Massachusetts Declares Who Is the Bad Art Friend

Allison McFall

A copyright case that divided the internet in 2021 was ruled on by a district court judge in Massachusetts this month. Netizens’ interest in the lawsuit was piqued by the New York Times article “Who Is the Bad Art Friend?” The article centered around a dispute between two writers regarding the use of a letter, originally posted on Facebook by one writer, in the other writer’s short story.[1]

During the summer of 2015, writer Dawn Dorland Perry (Dorland) created a Facebook group to update her friends on her decision to undertake a nondirected kidney donation.[2] On July 20th, 2015, Dorland posted a letter that she sent the stranger who received her kidney. In the letter, Dorland expressed her well wishes for the kidney recipient and asked to meet them.[3] During this period, some members of Dorland’s Facebook group, including writer Sonya Larson, privately mocked Dorland via text and email. Dorland’s actions inspired Larson to write a story about a self-centered “white savior” character who donates a kidney to woman of color. Larson’s communications confirm she based the character on Dorland and used Dorland’s letter nearly verbatim in early drafts.[4] Two early versions of Larson’s story were published in 2016 and 2017.[5]

In 2018, Larson’s story was chosen as the year’s city-wide common read for the Boston Book Festival. At this time, Dorland became aware that portions of her letter were used in the story and hired a lawyer to protect her intellectual property.[6] Dorland’s attorney sent the Boston Book Festival a cease-and-desist letter demanding the festival not release Larson’s story and contacted publishers asking them to take down the story.[7] This resulted in the Boston Book Festival being cancelled and Larson’s story being pulled from publication. Dorland and Larson attempted to reach a legal settlement regarding the story, but after negotiations broke down, Larson sued Dorland on January 30th, 2019. Part of the relief Larson sought was a declaratory judgment of noninfringement.[8]

On September 14th of this year, District Judge Indira Talwani ruled on summary judgment that Larson did not infringe upon Dorland’s copyright.[9] The court accepted that Dorland had a valid copyright over her letter and that based on the evidence, Larson copied Dorland’s’ letter.[10] The rest of the judge’s analysis rested on whether “the copying of the material was so extensive that it rendered the infringing and copyrighted works ‘substantially similar.’”[11] Because the court did not want to make writers legally behold to early drafts of their work, the court decided to rule on the similarity of each version of Larson’s story individually.[12] The court found that the 2016 version of Larson’s story, published as an audiobook, was substantially similar and infringed upon Dorland’s original letter due to the amount of verbatim text used.[13] The 2017 version of Larson’s story, published in an online publication, contained paraphrasing of the ideas contained in Dorland’s letter. This version did not compel a finding of  noninfringement because the changes made were not striking enough that no reasonable juror could find the story infringing.[14] The version of the story printed for the 2018 Boston Book Festival was found not to infringe on Dorland’s original letter due to its lack of verbatim or closely paraphrased language.[15]

Moreover, the judge also found that the 2016, 2017 and 2018 versions of Larson’s story were protected by the fair use doctrine under the Copyright Act.[16][17] When discussing the first fair use factor, the character of Larson’s use, the court found that Larson used the letter to contrast a kidney donor’s altruistic view of her actions with a kidney recipient’s critical view of her actions. Dorland used her letter to express her well wishes for kidney recipient. Because of the transformative nature of Larson’s use of the letter, the court found in her favor on this point.[18] As to factor two, the nature of the work, the court found that while the letter was in-between creative and factual, the letter was definitely published.[19] Because Dorland shared her letter with her Facebook friends, her kidney recipient, and the UCLA transplant team, the letter could not be considered private or unpublished.[20] When considering factor three, amount or substantiality of use, the court’s analysis mirrored its discussion of substantial similarity, finding in favor of Dorland for the 2016 and 2017 versions but in favor of Larson for the 2018 version.[21] As regards factor four, effect on market value of the original work, the court found that because Larson changed the character and message of Dorland’s original letter so much, Larson’s story does not usurp demand for the original letter.[22]

The court additionally rejected Dorland’s argument that Larson’s “bad faith” disparaging comments via email and text regarding Dorland should preclude Larson’s ability to claim a fair use defense.[23] In the court’s analysis, bad faith only relates to the way Larson obtained Dorland’s copyrighted material, not Larson’s personal character. In this case, Dorland voluntarily shared her letter with Larson, so there was no bad faith involved.[24] Because three of the four fair use factors weigh in favor of Larson, the court found that all three versions of Larson’s story are protected by the fair use doctrine.[25]

While Dorland can appeal this decision, for now it appears that in the court of law, Larson is not the bad art friend.


[1] Robert Kolker, Who Is the Bad Art Friend?, N.Y. Times, (Oct. 5, 2021), https://www.nytimes.com/2021/10/05/magazine/dorland-v-larson.html [https://perma.cc/F3YX-E393], [https://web.archive.org/web/20230927162853/https://www.nytimes.com/2021/10/05/magazine/dorland-v-larson.html].

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Larson v. Perry, No. 1:19-cv-10203-IT, 2023 U.S. Dist. LEXIS 163833, at *15 (D. Mass. Sep. 14, 2023).

[9] Id.

[10] Id. at *16.

[11] Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir. 2000).

[12] Larson v. Perry, No. 1:19-cv-10203-IT, 2023 U.S. Dist. LEXIS 163833, at *17 (D. Mass. Sep. 14, 2023).

[13] Id. at *18

[14] Id. at *19.

[15] Id.

[16] Id. at *30.

[17] 17 U.S.C. § 107(1)–(4).

[18] Larson v. Perry, No. 1:19-cv-10203-IT, 2023 U.S. Dist. LEXIS 163833, at *22 (D. Mass. Sep. 14, 2023).

[19] Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 61 (1st Cir. 2012).

[20] Larson v. Perry, No. 1:19-cv-10203-IT, 2023 U.S. Dist. LEXIS 163833, at *25 (D. Mass. Sep. 14, 2023).

[21] Id. at *26.

[22] Id. at *28.

[23] Id. at *29.

[24] Id.

[25] Id. at *30.