Orthogonal Purposes and Differing Motivations: Post-Warhol Fair Use Implications of “Who Is the Bad Art Friend?”
By Samuel Fujikawa
In October 2021, the internet exploded over Robert Kolker’s New York Times article, “Who Is the Bad Art Friend?”[1] For an instant of online fixation, the tale of Dawn Dorland Perry and Sonya Larson enamored the online masses.[2] For those unfamiliar with the story, “Who Is the Bad Art Friend?” illuminates how Dorland and Larson, both writers in the same literary circles, went from acquaintances to adversaries after Dorland publicly shared a letter about her kidney donation and Larson wrote a successful short story about, strangely, a kidney donation, a suspect altruistic kidney donor, and a letter that is eerily similar to the one Dorland wrote.[3] Accusations of plagiarism ensued, and eventually a lawsuit was filed, though the legal implications of Dorland and Larson’s actions were inconsequential in Kolker’s story, which focused mainly on how intersections of friendship, loyalty, art, race, and ownership create a frankly messy ordeal, where the lines between “good” and “bad” are unclear.[4]
While the internet may have moved on from the “Bad Art Friend” saga, in September 2023, the District Court of Massachusetts revived the tale, this time with less focus on the moral implications of Dorland and Larson’s story, reframing the dispute in legal terms and consequences.[5] Larson v. Perry offers one of the first applications of the Supreme Court’s ruling in the Andy Warhol Foundation for the Visual Arts v. Goldstein, in which the Court found that pop artist Andy Warhol’s use of a photographer’s portrait of the artist Prince was not fair use, creating potential consequences in the legality of appropriation art.[6] In Larson v. Perry, the District Court of Massachusetts applied Warhol to find that Larson’s use of a Dorland’s letter in her short story was fair use, since Larson’s use—as a critique of a so-called “altruistic” act—had an “entirely orthogonal purpose” to Dorland’s letter.[7]
By relying on the “orthogonal purposes” and differing motivations between Dorland and Larson, the court found that the commercial benefits offered to Larson through her use of Dorland’s letter were outweighed by the critical function that such copying played in the short story.[8] Larson implies that lower courts will continue to allow for some commercially beneficial appropriation under the fair use doctrine even after Warhol; but the decision heavily relies on the critical aspect present in such use.[9] For the Larson court, the “unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market.”[10] Thus, “an allegedly infringing work [that] 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.”[11]
So, while the jury is still out as to “Who Is the Bad Art Friend?,” when it comes to copyright law, it just might turn out that the “bad art friends” — or those who copy or exploit one’s work as a means to criticize it — may actually be better off than “good” art friends.
[1] See Robert Kolker, Who Is the Bad Art Friend?, New York Times, https://www.nytimes.com/2021/10/05/magazine/dorland-v-larson.html (Oct. 5, 2021); see also, e.g., Elizabeth Bruenig, The Harsh, Central Truth of the Viral ‘Bad Art Friend’ Story, Atlantic, https://www.theatlantic.com/ideas/archive/2021/10/bad-art-friend-dorland-larson/620321/ (Oct. 7, 2021) (commenting on Who Is the Bad Art Friend, and detailing how “the story swiftly became an obsession among the very online”) .
[2] See Bruenig, supra note 1.
[3] Kolker, supra note 1.
[4] Id.
[5] See Larson v. Perry, 2023 U.S. Dist. LEXIS 163833, at *35 (Mass. D. Ct.).
[6] Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1266–69, 1287; see Amy Adler, The Supreme Court’s Warhol Decision Just Changed the Future of Art, Art in Am. (May 26, 2023, 10:47 AM), https://www.artnews.com/art-in-america/columns/supreme-court-andy-warhol-decision-appropriation-artists-impact-1234669718/ (“Any artist who works with existing imagery should now reconsider her practice.”).
[7] Larson, LEXIS 163833 at *35 (“That motivation could not be further from Dorland’s purpose in writing, posting, and sending the letter, which was to do exactly that which Larson condemns in her story: to seek connection with her kidney recipient, and to seek recognition from a broader community.”).
[8] Id.
[9] Id.
[10] Id. at *34 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994)).
[11] Id.