Dorland v. Larson (aka The Bad Art Friend)—Where Plagiarism Meets Copyright Infringement

When journalist Robert Kolker published an article in the New York Times Magazine titled Who is the Bad Art Friend?, it set the internet ablaze over a strange feud between two writers, Dawn Dorland and Sonya Larson. The myriad of issues feverishly debated includes not only white privilege and saviorism, narcissism, performative altruism, and bullying, but plagiarism and copyright infringement. If you haven’t delved into the brouhaha, here’s a primer of the lawsuit and social media gossip. 

In 2015, Dorland decided to donate her kidney to a stranger. To update people on her endeavor, Dorland regularly communicated about the experience with a private group of writers on Facebook. Larson was part of that group, along with other writers Dorland had met in Boston. After the surgery, Dorland wrote a letter to the kidney recipient, which she shared with the group. 

A year later, Dorland discovered from another writer that Larson had written a short story titled The Kindest about a narcissistic white woman donating a kidney to a biracial woman. The story, according to Kolker, was “a study of hidden motives of privileged white people.” Dorland also learned that Larson had used parts of the letter Dorland had posted to the Facebook group. Larson never acknowledged the story to Dorland.  However, Larson told others in her private communications that Dorland’s letter was “too damn good” to change and she couldn’t resist exploiting Dorland as a character like Dorland herself used her kidney donation for personal gain. 

Angry over Larson’s actions, Dorland sent letters to a few organizations Larson worked with alleging plagiarism to prevent publication of Larson’s story and demanding they end their relationship with her. Dorland also sent a cease-and-desist letter to Larson and asked for financial compensation too. Then, Larson cranked up the dispute by suing Dorland for defamation and tortious interference of contracts. Dorland counterclaimed for copyright infringement and emotional distress. The later claim the judge eventually dropped. 

During discovery, Larson’s emails and text messages with other writers revealed mocking exchanges criticizing Dorland’s kidney donation. As an outlier reading these gossipy communications, it reeks of the stuff usually found in high school sagas rife with bullies and mean girls. 

Dorland v. Larson and the ensuing drama is another instance of an age-old story about how artistic theft creates new works of art. Take it from Picasso. “Good artists copy; great artists steal.”  

As writers, creative endeavors shape our world. We are a product of our times, constantly creating work that amalgamates inspiration, imitation, influence, and originality. No story is entirely original because stories are heavily derivative, built on our experiences, and influenced by what has come before us. But how do we stick with the sunny freshness of originality and avoid the shadowy darkness of plagiarism and copyright infringement?

Simple. Like any ethical or legal violation, look at the facts and make an informed judgment call whether to steal or not to steal, crib or not to crib, imitate or not to imitate someone else’s work. Unfortunately, Larson and Dorland have found themselves embroiled in litigation over the answers to these questions. Their lawsuit is one more example of why we should know the difference between plagiarism and copyright infringement as writers.

What is plagiarism?

Most of us instinctively know the answer to this question. Plagiarism is essentially passing off someone else’s words as our own. But it is not just the lifting of text. Ideas, plots, scenes, and characters can be plagiarized too. If there is wholesale copying of another’s creative expressions and presentations without crediting the original author, then there is plagiarism.

There are many ways to plagiarize. The most common types are:

1. Direct plagiarism = “the word-for-word transcription of a section of someone else’s work, without attribution and without quotation marks.” This is the most common form of plagiarism. Often direct plagiarism results in copyright infringement (see below) (Bowdoin College. “The Common Types of Plagiarism.” www.Bowdoin. edu).
2. Paraphrasing = plagiarism when you fail to cite your source. Often this type of plagiarism is accidental.
3. Mosaic or Patchwork Plagiarism = “borrow[ing] phrases from a source without using quotation marks, or find[ing] synonyms for the author’s language while keeping to the same general language structure and meaning as found in the original. (Queens College. “Mosaic Plagiarism.” www.qc.cuny.edu).
4. Potluck Plagiarism = “copying from several different sources, tweaking the sentences to make them fit together while retaining most of the original phrasing.” (SUNY Cortland. “Types of Plagiarism.” www.2courtland.edu).
5. Self-plagiarism or Recycling Fraud = “republishing a work in its entirety or reusing portions of a previously written text while authoring a new work.” (Turnitin. “Is recycling your own work plagiarism.” www.turnitin.com). For example, if I had not mentioned that I’d previously published a good chunk of this article, which I have in a blog post, then republishing again would be an example of self-plagiarism. 

What is copyright infringement?

The US Copyright Office defines copyright infringement as occurring when a “copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” (United States Copyright Office. “Definitions.”). A copyright must be registered before you can sue in federal court. In addition, a copyright must be registered before the infringing act (or three months after the publication of the infringing act) if the copyright owner is to be eligible for statutory damages, which under the law can range from $750 to $30,000 per work infringed, and up to $150,000 per work for willful infringement. 

The difference between copyright infringement and plagiarism.

Most people think plagiarism has to do with copyright infringement. Unfortunately, confusing the two concepts is a common mistake. Copyright infringement is the unauthorized use of copyright-protected material, which is different from claiming to be the originator of someone else’s work. The former violation has legal ramifications; the latter, ethical.

While copyright infringement and plagiarism are usually mutually exclusive, these gnarly beasts can interbreed.

1. A writer can duplicate copyright-protected work and be both an infringer and a plagiarist if the use of the copyright-protected material is without permission and the writer poses as the original author. This is where Direct Plagiarism and Copyright Infringement meet. In my view of the Dorland v. Larson facts, Larson’s use of Dorland’s letter constitutes copyright infringement. Whether that claim fails in the lawsuit depends on whether Dorland registered the letter with the copyright office (see below).
2. A writer can plagiarize a work, like copying a William Shakespeare play, and pose as the author, but not be guilty of copyright infringement if the work is in the public domain or the use is considered fair.
3. A writer can replicate an author’s work, give credit and not be a plagiarist but still be guilty of infringement because the use was unauthorized or did not fall within the fair use exceptions.

How to avoid plagiarism

• Careful research
  • Take meticulous notes when researching, with proper source citations and quotation marks on passages. This way, you will remember if the words are yours or have been used before. Do not cut and paste from source material into your manuscript. And do not write with open articles or books on your screen or desk. These shortcut methods only invite plagiarism because copying is much too easy.
• Give credit
  • If you are using someone else’s words, then follow that expression thought to be written by Samuel Adams: “Give credit where credit is due.” In other words, do not lift words but if you do, use proper attribution when quoting or paraphrasing. Here is an excellent article with guidelines for using quotes and paraphrasing by Beth Hill.
  • Generally, we do not quote or paraphrase in fiction. Research is not pasted verbatim into the manuscript. Instead, we work facts into our stories via characters and prose. There are exceptions, of course, like using a relevant quotation at the beginning of the novel, a protagonist’s favorite line in a poem, or the lyrics of a song sung by a villain. All of which require citing sources and, if not in the public domain, may involve copyright permissions (see my earlier post on copyright permissions or these two posts on using song lyrics).
  • Of course, there is leeway for the process of osmosis. We read. We absorb. We file in our subconscious phrases, scenes, and plot elements that make an impact on us. Later, we reuse them, often thinking we are so brilliant for thinking of it. This type of copying lacks intention and is not worth your worry.
• Inspiration and similarities
  • If another’s work inspires you, there is no need to credit the source. Using someone’s idea, plot element, scene, or character but making it your own in a unique and original way with sufficient differences is usually kosher. 
  • The same goes for having similar plots or themes with another novel. Every story will have elements that are similar or identical to other stories. As noted above, this is part of the derivative nature of fiction. Plots and themes are constantly reused, reimagined, retold, and rehashed but as with inspiration, in a unique and original way. For example, how many times have we seen a new take on Romeo and Juliet? 
  • Inspiration, in my view, is what Larson has done. She has used Dorland’s experience as inspiration for her own story, which studies the hidden motives of privileged white people who demand praise for their altruism. She’s changed the characters and altered the facts. The use of the letter, however, is a different story. 
  • But things are a bit gray in this area when using another writer’s experience for inspiration. As Katy Waldman notes in the New Yorker, “when you put a person’s life in your art, you risk misrepresenting them. But when you put another writer’s life in your art, you commit a kind of proleptic plagiarism—you steal their material. … [A] premium is placed on authors’ personal familiarity with the worlds they summon. There’s a corresponding sense that the person who inhabited a story in real life should get the first crack at fictionalizing it.”
• Internet common sense
  • Just because you found something on the internet does not mean it is available for use without giving proper credit to the source. Resist the urge to lift words. Plus, those words could have been stolen from someone else.
• Parody exception
  • Parody imitates an original work but ridicules and exaggerates for comic effect making the new work original and not a copy. Parody in books will typically note what is parodied, like National Lampoon’s Doon, a parody of Frank Herbert’s science fiction novel Dune, or Fanny Merkin’s Fifty Shames of Earl Grey, a parody of Fifty Shades of Grey. There is no plagiarism because there is no attempt to pass off the original work as one’s own.
• Common knowledge
  • Phrases, images, metaphors, snippets of description, and facts that are not unique because they are common knowledge to a large population, or are used in a wide range of unrelated sources, do not require attributions. Unfortunately, there are no clear rules as to what constitutes common knowledge. Stick to the “widely accessible and known” guideline above, and you should avoid accidental plagiarism. But if you are using something from a novel, whether the book is famous or not, and the copied material is likely to be unfamiliar to most people, then play it safe. Use attributions.

What to do if someone plagiarises your work or infringes your copyright 

Plagiarism is an ethical violation with few means of legal recourse, unlike copyright infringement, which provides legal remedies outlined in federal laws. If you suspect your work has been plagiarized, document the offense. Then contact the plagiarizer and ask them to remove the content from print or the internet.

If the plagiarism is not in a self-published book, alert their publisher (and yours) and let them settle the matter. Book contracts have warranty and indemnification clauses allowing a publisher to sue for breach of contract and pull the plagiarized work from publication.

If the plagiarized work is copyright-protected, you can contact the person and alert them of the infringement. If removal of the infringing work is not enough and you want to sue, consult a lawyer. You will need to register the copyright in the work before filing a lawsuit in federal court. If you are traditionally published, alert your editor to the copyright infringement and let the publisher’s legal team handle the issue. If you need more information, see my article about how to deal with content theft.

While it might be tempting to resort to industry shaming, beware of the backlash. Public shaming can land you in the middle of a libel suit and the subject of constant and unflattering internet discussion, which is precisely what happened to Dorland and Larson.

If all else fails, consult a lawyer, but ask yourself: is the expense worth the outcome? In most cases, you will shell out high legal fees for a low recovery in damages. Taking Dorland’s case as an example, I doubt Dorland registered the letter (who registers a post on Facebook) before Larson’s infringement. Nor did she register three months after Larson’s publication of the letter based on when Dorland became aware of Larson’s short story. This means no statutory damages or attorney’s fees for Dorland. Instead, she’s left with lost damages which in this case would be what Larson earned for her story (about $425). Dorland’s damages are so small it makes the lawsuit financially unfeasible.

Many copyright owners fail to register for a copyright until it’s too late. Unfortunately, this forces them into a difficult position of having to prove actual damages like Dorland with no possibility of recovering more significant amounts, namely statutory damages and attorney’s fees.

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Photo Credit:  patrick.verstappen | VisualHunt

Legal Disclaimer: The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer who is also a lawyer, helping other fellow writers learn about publishing law-related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. You can read our full Sidebar Saturdays legal disclaimer here.