In this lawsuit involving copyright claims and various state law claims, Judge Talwani denied Larson’s motion to dismiss Perry’s copyright infringement counterclaim for failure to state a claim. She found that Dorland adequately pled substantial similarity between a letter that she wrote to the anonymous recipient of her kidney donation and Larson’s short story the Kindest, which included a letter that Dorland asserts to infringe on the copyright in Dorland’s letter. She noted that substantial similarity is an issue of fact that is not typically susceptible to motions to dismiss, and can only be dismissed where either the similarity exists only in non-copyrightable portions of the copyright-holder’s work or where no reasonable jury could find the works to be substantially similar. She compared the two works and found enough similarity, including the similarities in the protagonists and their motivations, the structure of the letters and some specific terms and phrases, to preclude dismissal on this ground.
Judge Tawlani denied dismissal on Larson’s fair use assertion. She found that Larson’s work could not be said to be transformative (and thus fair) at this stage of the proceeding, because most of the fair use factors involve factual issues that must be fleshed out through discovery. Finally, Judge Talwani refused to dismiss for lack of damages. While statutory damages and attorney’s fees appear to be unwarranted, given Larson’s publication of her story prior to Dorland’s registration of her copyright, Dorland would still be entitled to nominal damages and to injunctive relief, entitling her to proceed with her claims.