Larson v. Perry et al

Filing 99

Judge Indira Talwani: ORDER entered. Memorandum and Order GRANTING IN PART and DENYING IN PART Sonya Larson's Motion to Dismiss Counterclaims 77 . Please see attached. (Kelly, Danielle)

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
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BUSINESS LAW GROUP, PC, and
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JEFFREY A. COHEN, Esq.
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Defendants.
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____________________________________*
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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.
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Civil Action No. 19-cv-10203-IT

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

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].
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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.

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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.

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¶¶ 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

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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 [#753]; 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

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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

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).
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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

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

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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.

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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

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