Hans H. Hertell, a partner at Pryor Cashman and a member of the firm's Media + Entertainment and Intellectual Property Groups, recently discussed the viral New York Magazine article by Robert Kolker titled "Who Is the Bad Art Friend?" with a reporter at Bloomberg Law. The report focuses on the dispute between Sonya Larson and Dawn Dorland over the alleged plagiarism of Dorland's written work, which was initially posted in a private Facebook group.
According to the newsletter:
Hans H. Hertell, a partner in Pryor Cashman's media & entertainment and IP groups, said Larson should have made more of a point of challenging whether Dorland's Facebook post was copyrightable at all.
Because Larson didn't dispute the copyright, it's something the court took for granted.
"Whether ordinary personal letters, or for that matter mundane social media posts, are subject to copyright protection, appears to be a largely undeveloped area in the law," Hertell said.
According to Hertell, most cases that litigants cite for the proposition that letters are generally protected involve unpublished letters "by or about literary or historical figures, such as J.D. Salinger, that were sought for publication in a biography."
"A personal letter about a kidney donation-as polished, well-written, and persuasive as it could be-if merely factual or informational" isn't quite the same, he said, "as least as far as the constitutional prerogative to promote the progress of science and useful arts is concerned."
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