Larson v. Perry

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

SONYA LARSON, *

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Plaintiff, *

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v. *

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DAWN DORLAND PERRY, COHEN *

BUSINESS LAW GROUP, PC, and *

JEFFREY A. COHEN, Esq. *

*

Defendants. *

____________________________________* Civil Action No. 19-cv-10203-IT

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DAWN DORLAND PERRY, *

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Counterclaim-Plaintiff, *

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v. *

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SONYA LARSON, *

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Counterclaim-Defendant. *

MEMORANDUM & ORDER

February 2, 2021

TALWANI, D.J.

Pending before the court is Sonya Larson’s Motion to Dismiss the Counterclaims [#77]

brought by Dawn Dorland Perry. For the reasons that follow, the motion is ALLOWED as to the

claim for Intentional Infliction of Emotional Distress and DENIED as to the Copyright claims.

I. Facts Alleged in the Counterclaims1

Counterclaim-Plaintiff Dawn Dorland Perry (“Dorland”) and Counterclaim-Defendant

Sonya Larson are both authors. Countercls. ¶¶ 1–2 [#75]. The two became close friends after

they crossed paths at a Boston creative writing center. Id. ¶¶ 8–21. In 2015, Dorland decided to

donate one of her kidneys without directing the donation to a particular recipient. Id. ¶¶ 22–24.

As a result of her nondirected donation, health professionals were able to create a short “surgical

chain” in order to provide a kidney to a recipient that otherwise would have had no other living

donor. Id. ¶¶ 24–33.

As Dorland was preparing for the kidney donation surgery, she created a private

Facebook Group to share the experience with friends and family. Id. ¶¶ 34–35. Shortly after the

donation, Dorland wrote a letter to the final recipient of the surgical chain and posted the letter in

the Facebook Group (the “Dorland Letter”). Id. ¶ 49. The Dorland Letter explained, in Dorland’s

unique and personal style, Dorland’s motivations for making the kidney donation. Id. ¶ 50.

Larson was a member of the group and saw all the posts and comments contained therein,

including the Dorland Letter. Id. ¶¶ 38–39, 47–48, 57.

In 2016, Larson entered into a publication agreement to publish a short story called the

Kindest. Id. ¶ 117. Larson ultimately published or attempted to publish multiple versions of the

Kindest in different formats, including as an audiobook published on Audible.com and Brilliance

Audio in 2016, id. ¶¶ 117–18; on the website of American Short Fiction (“ASF”) no later than

2017, id. ¶¶ 82–86; and with the Boston Book Festival (“BBF”) in 2018, id. ¶¶ 137–44. Each

1 The Counterclaims were originally set forth in Dorland’s Answer and Counterclaim

(“Countercls.”) [#75], and restated “without amendment or changes for purposes of

completeness of filing” in Dorland’s Answer to Second Amended Complaint and Restated

Counterclaim [#96].

version of the Kindest contained a version of a letter (including ones attached to the

Counterclaim as Exhibits C and D [#75-3], [#75-4] and identified by Dorland as the “ASF Web

Letter” and the “Brilliance Letter”) that, to various degrees, has similarities to the Dorland

Letter. Id. ¶¶ 90–96, 99–103, 119–21, 123–26, 128.

On June 8, 2018, Larson also registered for copyright protection a version of the Kindest,

including a “scrubbed” version of the Dorland Letter. Id. ¶¶ 152, 156.

On June 10, 2018, Dorland registered the Dorland Letter with the U.S. Copyright Office.

Id. ¶ 54, Exhibit B.

In 2019, Larson published in the anthology “Welcome to the Neighborhood” another

version of the Kindest with a letter identified by Dorland as the “WTTN Letter.” Id. ¶¶ 145–51.

The various versions of the letters in the Kindest are referred to herein collectively as the “Larson

Letters.”

II. Procedural Background

Larson initiated this action on January 30, 2019, see Complaint [#1], and following

various motions and amendments not relevant here, Dorland filed an Answer and Counterclaims

Against Larson [#75], alleging Copyright Infringement, for which Dorland seeks damages and

attorneys’ fees (Count I), declaratory relief (Count II), and injunctive relief (Count III), as well as

Intentional Infliction of Emotional Distress (Count IV). Dorland then brought the present Motion

to Dismiss the Counterclaims [#77].

III. Legal Standard

In order for a complaint to survive a motion to dismiss, the well-pleaded facts in the

complaint must contain “enough factual detail” to “state a claim to relief that is plausible on its

face.” Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015); Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007) (dismissing a complaint because plaintiffs did not

“nudge[] their claims across the line from conceivable to plausible”). When reviewing a motion

to dismiss under Fed. R. Civ. P. 12(b)(6), the court must first “distinguish ‘the complaint’s

factual allegations (which must be accepted as true) from its conclusory legal allegations (which

need not be credited).’” Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013)

(quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). The court must then

“determine whether the factual allegations are sufficient to support ‘the reasonable inference that

the defendant is liable.’” Garcia-Catalan, 734 F.3d at 103 (quoting Haley v. City of Boston, 657

F.3d 39, 46 (1st Cir. 2011)).

IV. Discussion

Larson’s Motion to Dismiss Dorland’s Counterclaims [#77] attacks Dorland’s Copyright

claims and her Intentional Infliction of Emotional Distress claim. The two issues are addressed in

turn.

A. Copyright Infringement

As to the copyright claim, Larson makes three arguments. First, Larson contends Dorland

has failed to plead actual infringement. Second, Larson contends that, even if the Larson Letters

infringed the Dorland Letter, any infringement constituted permissible fair use. Third, Larson

contends that Dorland’s damages are nominal at best and that attorneys’ fees are not available to

Dorland as a matter of law because Dorland did not register her copyright until after the alleged

infringement.

1. Whether Dorland has Pleaded Copyright Infringement

Dorland’s copyright claim asserts that each version of Larson’s short story the Kindest

contains a version of the Larson Letters that infringe on Dorland’s copyright. Countercls.

¶¶ 176–77 [#75]. In order to prove infringement, Dorland must show “‘(1) ownership of a valid

copyright, and (2) copying of constituent elements of the work that are original.’” Segrets, Inc. v.

Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir. 2000) (quoting Feist Publications, Inc. v. Rural

Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Here, Larson does not dispute Dorland’s copyright to

the Dorland Letter and thus the question of infringement is reduced to whether Dorland has

adequately alleged the second step of the Feist test, “copying of constituent elements of the work

that are original.” This second prong also contains two steps: “The first step requires a plaintiff

to prove that the defendant copied the plaintiff’s copyrighted work as a factual matter (either

directly or through indirect evidence). In the second step, the plaintiff must prove that the

copying of the copyrighted material was so extensive that it rendered the infringing and

copyrighted works ‘substantially similar.’” Id. Larson also does not challenge that Dorland has

adequately pleaded copying as a factual matter, and instead only argues that the Larson Letters

are not substantially similar to the Dorland Letter. Larson Mem. 8 [#78]. Thus, the question

presented turns on whether Dorland has adequately pleaded “substantial similarity” between the

Dorland Letter and the Larson Letters.

As a preliminary matter, there is some discordance in evaluating questions of “substantial

similarity” on a motion to dismiss. This is because “‘the determination of the extent of similarity

that will constitute a substantial and hence, infringing similarity presents one of the most difficult

questions in copyright law, and one that is the least susceptible of helpful generalizations.’”

Skinder-Strauss Assocs. v. Massachusetts Continuing Legal Educ., Inc., 914 F. Supp. 665, 677

(D. Mass. 1995) (quoting 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright

§ 13.03[A] at 13–29 (1995)). For this reason, courts have held that questions of whether two

works are “substantially similar” present an “extremely close question of fact” that “have

traditionally been reserved for the trier of fact.” Peter F. Gaito Architecture, LLC v. Simone Dev.

Corp., 602 F.3d 57, 63 (2d Cir. 2010) (internal citations and quotations omitted); Cf. Segrets,

Inc. v. Gillman Knitwear Co., 207 F.3d 56, 62 (1st Cir. 2000) (“summary judgment for a plaintiff

on substantial similarity is unusual”).

Though “unusual,” courts within and without this Circuit have found that questions of

“substantial similarity” need not be presented to the jury when they can be resolved as a matter

of law “either because the similarity between two works concerns only non-copyrightable

elements of the plaintiff’s work, or because no reasonable jury, properly instructed, could find

that the two works are substantially similar.” Id.; see also T-Peg, Inc. v. Vermont Timber Works,

Inc., 459 F.3d 97, 112 (1st Cir. 2006) (finding grant of summary judgment appropriate “only

when a rational factfinder, correctly applying the pertinent legal standards, would be compelled

to conclude that no substantial similarity exists between the copyrighted work and the allegedly

infringing work”). Because Larson’s motion is brought as a motion to dismiss, the court will

only consider those versions of the documents attached to Dorland’s counterclaims. Here, those

are the Dorland Letter, Dorland’s Exhibit A [#75-1]; the ASF Letter, Dorland’s Exhibit C [#75-

3]; and the Brilliance Letter, Dorland’s Exhibit D [#75-4].

A side-by-side comparison of the original Dorland Letter with the ASF Letter and the

Brilliance Letter does not demand the conclusion that no reasonable jury would find “substantial

similarity” between the two. The First Circuit has set forth that “two works will be said to be

substantially similar if a reasonable, ordinary observer, upon examination of the two works,

would ‘conclude that the defendant unlawfully appropriated the plaintiff’s protectable

expression.’” T–Peg, 459 F.3d at 112 (quoting Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir.

2005)). The First Circuit has recognized that “the existence of only minor differences may itself

suggest copying, indicating that the infringer attempted to avoid liability by contributing only

trivial variations.” Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 608 (1st

Cir. 1988). But this does not mean that anytime an artist works off of another’s creation, the two

works are “substantially similar.” Instead, an artist can “avoid infringement by intentionally

making substantial alterations in the design of a copyrighted work so as to provide a substantially

different expression of the idea embodied in the copyrighted work” so long as “the points of

dissimilarity not only exceed the points of similarity, but indicate that the remaining points of

similarity are (within the context of plaintiff’s work) of minimal importance either quantitatively

or qualitatively.” Concrete Mach., 843 F.2d at 608 (internal citations and quotations omitted).

Here, while there are certain differences between the Dorland Letter and the ASF and

Brilliance Letters, there are enough similarities from which a reasonable jury may conclude that

the ASF and Brilliance Letters are substantially similar to the Dorland Letter. These include

similarities in their protagonists, the protagonists’ thoughts and motivations, the structure of the

letters, specific terms and phrases contained in the letters, and what the letter-writers are

attempting to convey to the letters’ recipients. While these similarities do not necessarily demand

a finding of substantial similarity, the similarities that exist would form a sufficient basis from

which a reasonable jury could draw that inference.2

2 Larson contends that any substantial similarity was “de minimis” since “no rational fact finder

would mistake Dorland’s Letter for Larson’s Story.” Larson Mem. 11–13 [#78]. But the question

is not whether an ordinary observer would mistake the entirety of Larson’s story for the Dorland

Letter, but whether Larson improperly copied the Dorland Letter in her short story. See

TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 599 (S.D.N.Y. 2013) (“the relevant

“question in each case is whether the similarity relates to matter that constitutes a substantial

portion of the pre-existing work—not whether such material constitutes a substantial portion of

the allegedly infringing work”) (cleaned up and citation omitted).

2. Fair Use

Larson further contends that that even if the Larson Letters are substantially similar to the

Dorland Letter, her use of the Dorland Letter constitutes a form of “transformative” fair use.

Larson Mem. 14 [#78] (citing 17 U.S.C. § 107). Under the Copyright laws, in considering a fair

use defense, the court must, at minimum, 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.” 17 U.S.C. § 107. Thus, “[f]air use is a mixed

question of law and fact.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560

(1985). And unlike the question of substantial similarity—which may be addressed by simply

comparing the two works—the facts central to the fair use analysis are matters of context that

often are not contained in the four corners of the works or the complaint. Cf. Sony BMG Music

Entm’t v. Tenenbaum, 672 F.Supp.2d 217, 219 n.2 (D. Mass. 2009) (“defenses such as the fair

use doctrine involve a more detailed analysis of the facts at issue and are best resolved by

summary judgment or adjudication at trial”) (quotation omitted); Browne v. McCain, 612

F.Supp.2d 1125, 1130 (C.D. Cal. 2009) (“in light of a court’s narrow inquiry at [the motion to

dismiss] stage and limited access to all potentially relevant and material facts needed to

undertake the [fair use] analysis, courts rarely analyze fair use on a 12(b)(6) motion”); Katz v.

Chevaldina, 900 F.Supp.2d 1314, 1316 (S.D. Fla. 2012) (noting the “general rule that fair use

defenses are not ripe for determination before the summary judgment stage”). The same is true

here. Considering Larson’s fair use defense would require a factual examination of the purpose

of Larson’s use, the nature of Larson’s work, and the effect of Larson’s use on the market or

value of Dorland’s work. 17 U.S.C. § 107. None of these may be gleaned from the Cross-

complaint or the works themselves. Accordingly, the court cannot conclude that Larson’s use

constituted fair use as a matter of law.

3. Damages

The copyright laws provide that the court may not award statutory damages or attorneys’

fees in the case of “any infringement of copyright in an unpublished work commenced before the

effective date of its registration.” 17 U.S.C. § 412(1). Here, Larson argues that Dorland did not

register the copyright to the Dorland Letter until after Larson allegedly infringed it, that Dorland

therefore is not entitled to statutory damages or attorneys’ fees, and that any damages she

suffered are nominal. Larson Mem. 18–20 [#78].

Dorland does not respond to Larson’s assertions regarding statutory damages and

attorneys’ fees. Notably, other courts to address the question generally have held that

“infringement ‘commences’ for the purposes of § 412 when the first act in a series of acts

constituting continuing infringement occurs.” Derek Andrew, Inc. v. Poof Apparel Corp., 528

F.3d 696, 700–01 (9th Cir. 2008) (collecting cases) (emphasis added).

Dorland does respond, however, that if she prevails, she may be entitled to at least

nominal damages and declaratory and injunctive relief. Dorland Mem. 14–15 [#82]. Dorland is

correct. Accordingly, regardless of whether Dorland can obtain statutory damages or attorneys’

fees, the Copyright Infringement claims may not be dismissed on the ground that Dorland has

not been damaged.

B. Intentional Infliction of Emotional Distress

Finally, Larson moves to dismiss Dorland’s Intentional Infliction of Emotional Distress

(“IIED”) claim on the basis that it fails to state a claim. Namely, Larson contends that even if the

court accepts all the allegations as true, Dorland cannot sustain a claim for IIED as a matter of

law. Larson Mem. 20–22 [#78]. Here, the court agrees with Larson.

As the Massachusetts Supreme Judicial Court has stated, “[t]he standard for making a

claim of intentional infliction of emotional distress is very high.” Polay v. McMahon, 468 Mass.

379, 385 (2014) (citing Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996)). “Liability

cannot be predicated on ‘mere insults, indignities, threats, annoyances, petty oppressions, or

other trivialities,’ nor even is it enough ‘that the defendant has acted with an intent which is

tortious or even criminal, or that he has intended to inflict emotional distress, or even that his

conduct has been characterized by “malice,” or a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort.’” Id. (quoting Tetrault v. Mahoney, Hawkes &

Goldings, 425 Mass. 456, 466 (1997)). Instead, IIED may only be found where the conduct

“go[es] beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly

intolerable in a civilized community.” Id. (quoting Roman v. Trustees of Tufts College, 461

Mass. 707, 718 (2012)).

Although an IIED claim turns on issues of fact, “[a] judge may grant a motion to dismiss

where the conduct alleged in the complaint does not rise to this level.” Polay, 468 Mass. at 386

(citing Beecy v. Pucciarelli, 387 Mass. 589, 596 (1982)). In considering the sufficiency of an

IIED claim on the pleadings, the court must keep in mind that “the trier of fact ‘would be entitled

to put as harsh a face on the defendant’s actions as the basic facts would reasonably allow.’

Roman, 461 Mass. at 718. But even where Dorland’s allegations are considered in this light, the

allegations are insufficient to reach the “very high” threshold of “extreme and outrageous”

conduct set by the Massachusetts courts. At worst, Larson took advantage of Dorland’s trust in

order to use Dorland’s personal and somewhat intimate story for Larson’s own benefit.

Countercls. ¶¶ 197–98 [#75]. In doing so, Larson is further alleged to have lied to Dorland, id. ¶¶

203–04, ceased communicating with Dorland, id. ¶ 206, and taken steps to “ostracize Ms.

Dorland from their mutual acquaintances in the writing community.” id. ¶ 207. Though these

allegations, if true, may be worthy of contempt (and may give rise to the stated claim of

copyright infringement) they do not “go beyond all possible bounds of decency” so as “to be

regarded as atrocious, and utterly intolerable in a civilized community.” Accordingly, Dorland’s

IIED claim fails on the pleadings.

V. Conclusion

For the aforementioned reasons, Counterclaim-Defendant Larson’s Motion to Dismiss the

Counterclaims [#77] is ALLOWED as to the claim for Intentional Infliction of Emotional

Distress and DENIED as to the Copyright claims.

IT IS SO ORDERED.

Date: February 2, 2021

/s/ Indira Talwani

United States District Judge