Fiction writing has a curious claim on truth.
We learn this at the youngest age, listening to fairy tales when the child in us “intuitively comprehends that, although these stories are unreal, they are not untrue …” Bettelheim, The Uses Of Enchantment: The Meaning and Importance of Fairy Tales (at 73).
We hear this in Melville’s revealing, in the opening of chapter 12 of Moby Dick, the location of the island of “Rokovoko,” a place that “is not down in any map; true places never are.”
We ponder the existential significance of that concept when Verghese writes:
It’s fiction!” thunders the old teacher. “Fiction is the great lie that tells the truth about how the world lives!” Mother and son are quickly converted, hungry to read — and here Verghese secures his opus’s through-line. After reading a book, Philipose explains to Ammachi, “I’ve lived through three generations and learned more about the world and about myself than I do during a year in school. Ahab, Queequeg, Ophelia, and other characters die on the page so that we might live better lives.
[Frank, Oprah chose well. ‘The Covenant of Water’ is a rich, heartfelt novel. A decade in the making, Abraham Verghese’s sweeping new book chronicles the evolution of a family in India that shares a dark secret, Washington Post, May 3, 2023 (quoting the novel)]
And we feel its self-reflective sense when Dorothy Lessing writes “There is no doubt fiction makes a better job of the truth” in Under My Skin: Volume One of My Autobiography, to 1949.
Thus, we face a world where writers seek to reveal truth, even in their fiction. As Dermott Hayes noted in stating that “[a] writer will find inspiration anywhere. They have to look and see, that’s all. Then they have to write.” So, while writers have a compulsion to use what they know from life to create their works of imagined lives, they will draw not only on events central and personal to themselves but on many things intersecting or tangential to the writer’s own life. They do this to create works of fiction expressing the writers’ truths by using, altering, extending, or supplementing others’ reality, and sometimes even use what others have written about their own experiences. The question then arises as to whether the fiction writer alone owns the copyright to work drawn in whole or part from another’s writings or experience.
That question recently arose in Sonya Larson v. Dawn Dorland Perry, a September 14, 2023 decision of the United States District Court for the District of Massachusetts, concerning “a story by Sonya Larson called The Kindest—which was inspired by a letter posted to Facebook by Dawn Dorland Perry [(“Dorland”), another Boston area writer], about her decision to donate a kidney to a stranger,” as noted in Bloomberg. By way of further background, “Larson, part of the same writers’ community in Boston, was in the group [to which Dorland posted the letter] and subsequently wrote three different versions of The Kindest, each of which resembled—to varying degrees—Dorland’s letter.” Id. As the District Court noted:
When Dorland read an online version of The Kindest in 2018, she noted the similarities between her letter and the letter in the story. Dorland alerted publishers, writing conferences, and journalists to what she considered Larson’s plagiarism and ethical betrayal. Dorland’s communications resulted in The Kindest being pulled from online publication with American Short Fiction. They also resulted in the Boston Book Festival cancelling its annual One City, One Story event, which had planned to feature The Kindest in 2018.
Larson filed suit against Dorland, claiming that Dorland’s allegations of plagiarism amounted to defamation, and that Dorland’s repeated communications with American Short Fiction and the Boston Book Festival constituted intentional interference with Larson’s business relationships. Larson also sought a declaration that she owns the copyright to The Kindest and that the letter in the short story does not infringe Dorland’s copyright. Dorland counterclaimed for copyright infringement, claiming that Larson’s use of Dorland’s letter was a violation of intellectual property law.
The District Court’s September 2023 opinion addressed “three legal issues: copyright infringement, defamation, and intentional interference with business relationships…[T]he court rules in Larson’s favor and against Dorland on the copyright claims and in Dorland’s favor and against Larson on the defamation and intentional interference claims.”
Let’s see why.
The copyright claims came down to a fair use analysis, something that has occupied discussions by this poster before. Indeed, today’s post is in some ways a follow-on to Out Of Character: Jersey Boys, Detective Stories, & The Case Of Space-Traveling Tardigrades, a post involving fair use issues arising in both fact and fiction writing. In Larson, Dorland claimed copyright in a 381-word letter posted to Facebook and further asserted that, therefore, each of the three versions of Larson’s The Kindest was a derivative work in which Dorland, therefore, owned the copyright because her letter and the later Larson works were substantially similar. Though the District Court agreed that the first Larson version (referenced as the “2016 Letter”) “took ‘material of substance and value’ from” Dorland’s letter such that “the undisputed evidence mandates a conclusion that the 2016 Letter is substantially similar to” Dorland’s original work, the District Court did not make such similarity findings as to the latter Larson efforts, holding (i) as to the 2017 Letter that the “the similarities between the 2017 Letter and the Dorland Letter are not so striking” and (ii) the “2018 Letter contains almost no verbatim or closely paraphrased language from the Dorland Letter: the key phrases identified above are all entirely absent from the 2018 Letter. [citation omitted] The organization and tone of the 2018 Letter are also notably different from the Dorland Letter.”
With a mixed bag present on the substantial similarity analysis, the District Court moved on to looking at fair use itself. It held that Larson’s works were transformative, and indeed critical of Dorland’s letter as well:
Indeed, it would be difficult to read The Kindest as anything other than a criticism of an altruistic donor’s choice to reach out to a kidney recipient. Chuntao, The Kindest’s narrator, seems to harbor resentment and pity—bordering on contempt—for her donor’s act of charity. The undisputed evidence regarding the context of Larson’s writing and drafting process makes it clear that this criticism was Larson’s focus in The Kindest: Larson’s conversations with friends and fellow writers underscore the critical attitude she took towards Dorland’s public discussion of her kidney donation, and towards Dorland herself.…Relatedly, that an allegedly infringing work is critical of an original work is a strong indication that the two artists had diverging motivations in creating their respective pieces, a fact that also weighs in favor of transformative use.
The District Court found fair use concepts precluded an infringement finding because “[i]n short, these two pieces are at opposite ends of the spectrum of writing about kidney donation.” The District Court, therefore, not only dismissed the infringement but also adjudged Larson as the owner of The Kindest copyright.
But this holding left the Court to consider whether Dorland’s efforts to publicize Larson’s “plagiarism” amounted to defamation or tortious interference. Larson’s prevailing on the infringement claims did not carry over to those claims. The Court held that a claim of plagiarism or infringement is the expression of a legal opinion, and “a statement of opinion cannot be defamatory ‘where the speaker communicates the non-defamatory facts that undergird his opinion.’ Piccone v. Bartels, 785 F.3d 766, 771 (1st Cir. 2015).” Likewise, the tortious interference claim failed as well.
So the legal result was that Larson did not infringe by using Dorland’s letter for inspiration, foundational structure, or material content for her work of fiction, but that Perry was within her rights, and did not violate Larson’s rights, by complaining publicly about what Larson had done, even though the complaints got expressed in stark terms referencing plagiarism and the like. So, writers on each side were told they could do what they did, say what they said, and write what they wrote. But the question remains of whether they should have done, said, or written such things.
That is the difference between the court of public opinion in one’s industry and a court of law in a governmental building—”In writing, plagiarismis a straight-up cardinal sin: If you copy, you’re wrong. But in the courts, copyright infringement is an evolving legal concept. The courts are continuously working out the moment when someone’s words cross over into property that can be protected; as with any intellectual property, the courts have to balance the protections of creators with a desire not to stifle innovation,” as the New York Times noted.
That New York Times Magazine story about Larson v. Perry crystalized the personal dynamic often so important to starting lawsuits but so rarely actually resolved in such suits:
Six days later, [Dorland] decided to ask her. Much as she had a year earlier, she sent Larson a friendly email, including one pointed request: “Hey, I heard you wrote a kidney-donation story. Cool! Can I read it?”
Ten days later, Larson wrote back saying that yes, she was working on a story “about a woman who receives a kidney, partially inspired by how my imagination took off after learning of your own tremendous donation.” In her writing, she spun out a scenario based not on Dorland, she said, but on something else — themes that have always fascinated her. “I hope it doesn’t feel too weird for your gift to have inspired works of art,” Larson wrote.
Dorland wrote back within hours. She admitted to being “a little surprised,” especially “since we’re friends and you hadn’t mentioned it.” The next day, Larson replied, her tone a bit removed, stressing that her story was “not about you or your particular gift, but about narrative possibilities I began thinking about.”
But Dorland pressed on. “It’s the interpersonal layer that feels off to me, Sonya. … You seemed not to be aware of my donation until I pointed it out. But if you had already kicked off your fictional project at this time, well, I think your behavior is a little deceptive. At least, weird.”
[Robert Kolker, Who Is the Bad Art Friend? Art often draws inspiration from life — but what happens when it’s your life? Inside the curious case of Dawn Dorland v. Sonya Larson, New York Times Magazine]
One wonders whether the feeling of weirdness merits acceptance in a world where we “know that artists, almost by definition, borrow from life. They transform real people and events into something invented, because what is the great subject of art — the only subject, really — if not life itself? This was part of why Larson seemed so unmoved by Dorland’s complaints. Anyone can be inspired by anything. And if you don’t like it, why not write about it yourself?” Id.(emphasis in original)
The Perry/Larson dispute was complicated by parallel dynamics—the principals were each writers, they already knew each other, and this did not imply using facts from one of their lives, but using what that person had written about those facts. That is, perhaps, a more psychologically fraught scenario than the traditional circumstance of a writer fictionalizing life events of people that they do not know personally.
Of course, many issues arise when one borrows from the facts of another’s life, and many comment on, offer guidance to, and instruct authors on how to write fictional stories inspired by real life. The earlier cited Dermott Hayes even chimed in with such advice. Moreover, we see such advice applied in so-called Real Person Fiction, or RPF, which are “fictional creations but about real people,” as described in Professor Lantagne’s article When Real People Become Fictional: The Collision Of Trademark, Copyright, And Publicity Rights In Online Stories About Celebrities.
This last genre, or really sub-genre, is an interesting one because “[i]t doesn’t implicate copyright,” Id. at 41, or at least it may not. Where the stories are written by fans and not derived from another creator’s work, the notion of copyright infringement ebbs.
But there may be an argument that some carefully crafted public personas have elements of purposeful creativity that might create for such persons “rights in themselves as fictional creations.” Id. at 50. Think about the difference between “Lady Gaga” and Stefani Joanne Angelina Germanotta, as an example, though it is hard to see how “Lady Gaga” is fixed in a tangible medium of expression, as much of expressive content derives from the fluidity of her changes and transformations back and forth from Gaga to Germanotta.
But Lady Gaga is nonetheless a creation:
After dropping out, she began transforming herself from Germanotta into Lady Gaga, whose style combined glam rock and over-the-top fashion design… Although she modeled herself on such theatrical performers as David Bowie during his Ziggy Stardust period, the New York Dolls, Grace Slick, and Freddie Mercury—her adopted stage name was derived from Queen’s song “Radio Ga Ga”—she created a character that came to occupy a unique space in the music world. Her fashion combined with her up-tempo, synthetic dance music and her edgy, theatrical performance to create stunning sounds and visuals. Indeed, while producing music, Lady Gaga also created her own sexually charged fashions—replete with dazzling wigs and space-age bodysuits—through her creative team Haus of Gaga.
Certainly trademark, right of publicity, and the notion of unfair competition offer some legal protections against knock-offs, but there remains something intriguing about considering how copyright might apply to real characters so created.
The Out of Character post foreshadowed that intrigue, noting the interesting scholarship evolving around character development/protection, and discussing a trio of cases that may have been random, or may have been a sign of “something else at work here.” That scholarship focused on fictional characters and why they come to mean so much to readers:
Tarzan, Betty Boop, Sam Spade, Scarlett O’Hara, James Bond, Harry Potter, Holden Caulfield, Sherlock Holmes: the mere names of these once-litigated figures evoke the market power and popular significance characters can possess. Characters are “cultural heuristics,” with the power to transport, amaze, horrify, and inspire. Once readers come to know a character, they may want to spend time with her again and again. The experience of reading about a character may deliver many of the same sensations and emotions as a social interaction with her in a reader’s real life would do. Narrative fiction has a unique ability to provide a set of simulated experiences for a reader to live out in her mind. It is perhaps this signature feature that can make reading so intensely emotionally engaging.
Characters are central to that experience of engagement, for reasons that are not entirely understood. Readers can know a character even more profoundly than they can know a human being, perhaps because of narrative techniques that invite readers into characters’ inner lives. Readers become deeply attached to “their” characters. In the words of one literary theorist, “[e]ven though readers know perfectly well that fictional characters are make-believe, they go on caring about them, lending them the bodies that they do not possess, feeling with them in emotional fusion that paradoxically calls into embodiment a psychic corporeality vouched for in readers’ own bodily responses.”
[Said, FIXING COPYRIGHT IN CHARACTERS: LITERARY PERSPECTIVES ON A LEGAL PROBLEM, 35 Cardozo Law Review 769, 770 (2013)]
The attachment to real persons and their carefully curated embodiments has, through social media, 24-hour news, and reality TV, begun to mimic and approximate those “narrative techniques that invite readers into characters’ inner lives,” and made RPF and other forms of expression an even greater focus of legal analysis, sociological inquiry, and economic attention. See Byrnes’ We Would Be Friends: Fans, Musicians and Social Media and Jarzyna’s Parasocial Interaction, the COVID-19 Quarantine, and Digital Age Media.
Parasocial interaction increased and took on a unique status during COVID-19 quarantines. As Jarzyna has written:
While individuals living in the 1800s likely developed [parasocial relationships, or] PSRs with protagonists in books, those in the late 1900s did so with television characters. Now social media has allowed for PSRs with reality TV celebrities, Instagram influencers, and the like. While the type of character differs across books, television, or social media, these relationships share that the target generally does not perceive a personal connection to the audience member. There is little or no return of communication or feelings, sometimes because the target is fictional, and at other times because the target has no awareness of the person engaging in PSI[, i.e. parasocial interactions].
But that is changing— “Another pivotal way in which digital media necessitates change in thinking about parasocialization lies in the degree of interaction it enables with a personality. The speed of information exchange and the advent of online communities have provided a much greater ability for distant strangers to communicate. Frequently, celebrities, media figures, and influencers now interact online in real time with those who follow them,” and there has been a “sizeable increase in reciprocation of information, and certainly ideas and emotions.” Id. This drive-through assumed intimacy and shared knowledge will likely impel further literary creations and borrowing from others for the fodder of fiction that in so many senses will seem truer than what’s real.
Allowing free speech in the pursuit of artistic truth makes enforcing ethical codes for novelists and other fiction writers difficult. Still, some have posited them, from the somewhat tongue-in-cheek obvious to more serious, but still ultimately general accounts. While those writing non-fiction and publishing research have very specific obligations that can be laid out in detail, for example, such is not the case for fiction writers. Indeed, it has been said that “a writer should have the liberty to ‘tell people what they don’t want to hear,’ as George Orwell wisely remarked.”
So telling the fiction writer to rewrite something to be more inclusive and less mean, or not to write something at all, raises questions. “Does that feel right…or just plain wrong, as if you would be interfering with the writer’s freedom of expression?” Maybe those are somewhat rhetorical questions, and the standard that writers like Dorland viscerally felt and Hansen wrote out are one and the same: “I finally think fiction’s ethics boil down to ‘Do unto others as you would have them do unto you.’ The questions that have not been asked by some fiction writers I’ve mentioned, but ought to be are: Would you be irritated if someone quoted you in such a way without attribution? Is the work wholly your own? Would you be annoyed in this circumstance if you found out another person’s identity was a lie?” To me, that seems to be at the heart of Dorland and Larson’s dispute, even if you never get to the rest of Hansen’s concluding questions like “Are your depictions motivated by the impulses of vengeance and cruelty, or by the Aristotelian standards of truth and beauty? Are you creating a work of art or simply a tawdry and meretricious vehicle for financial gain? And as years pass will you look back on this fractional period of your writing life with immense satisfaction or regret?”
So we return whence we started, looking at the link between lies and art, and “concerned with the connection between fiction and truth. This question is of utmost importance to metaphysics, philosophy of language, philosophical logic, and epistemology, as it raises in each of these areas and at their intersections a large number of issues related to creation, existence, reference, identity, modality, belief, assertion, imagination, pretense, etc.,” Franck Lihoreau writes at page 7) of the Introduction to Truth in Fiction (2010). So we too have joined that discussion, which will continue beyond this post and piece. Let us end with the inimitable Kinky Friedman saying that “[t]he best fiction is true.” …That makes sense intuitively because we know the difference between fact and fiction, just as we know truth lurks in both precincts without residing exclusively in one or the other.