Weller v. Flynn
| Decision Date | 21 May 2018 |
| Docket Number | Case No. 17–cv–8799 |
| Parties | Leslie WELLER, Plaintiff, v. Gillian FLYNN, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Adam E. Urbanczyk, Ziliak Law, LLC, Chicago, IL, for Plaintiff.
David Ransen Singer, Richard Stone, Andrew Gregory Sullivan, Jenner & Block LLP, Los Angeles, CA, Ashley Marie Schumacher, Laura L. Norris, Jenner & Block LLP, Chicago, IL, Jeremy Adam Chase, Linda Jane Steinman, Davis Wright Tremaine LLP, New York, NY, Kevin Tottis, Rachel M. Vorbeck, Chicago, IL, Monica L. Thompson, Chicago, IL, for Defendants.
Plaintiff Leslie Weller claims that the novel and movie Gone Girl infringe her screenplay Out of the Blue in violation of the Copyright Act, 17 U.S.C. § 101 et seq.[55]. She sued Gone Girl's author and screenwriter, Gillian Flynn, together with Flynn's publisher and various individuals and entities involved in producing and distributing the film. Id. Defendants moved to dismiss Plaintiff's claims. [70, 73, 75, 77]. For the reasons explained below, this Court grants Defendants' motions.
In 2005, Plaintiff wrote a screenplay titled Out of the Blue . [55] ¶¶ 1, 13. Plaintiff revised the script over the next few years, registering different versions with the United States Copyright Office in 2006 and 2007. Id. ¶¶ 1, 15. Plaintiff registered a third and final version of Out of the Blue with the Copyright Office in July 2008 (OTB3). Id. ¶ 16. Defendants' alleged copying of OTB3 forms the basis of Plaintiff's suit. See id. ¶¶ 28, 43, 47–82, 100–06, 111, 114.
Around March 2009, Random House—Flynn's publisher—advanced Flynn $150,000 for a new novel. Id. ¶¶ 18–19.2 Flynn wrote the book Gone Girl over roughly the next three years. Id. ¶ 20. In December 2011, Defendant Leslie Dixon sent a copy of Flynn's unpublished manuscript to Defendant Laura Jeanne Reese Witherspoon. Id. ¶ 21. Witherspoon, Dixon, and Witherspoon's then-business partner Bruna Papandrea began looking for a studio to produce a film version of the novel. Id. ¶ 22. In June 2012, a division of Penguin Random House published Gone Girl to significant financial success. Id. ¶¶ 23, 89.
According to Plaintiff, in July 2012 Witherspoon, Papandrea, and Dixon brokered Defendant Twentieth Century Fox's purchase of the book's film rights and secured Flynn to write the screenplay. Id. ¶ 24. Plaintiff alleges that Witherspoon and Papandrea then produced the film, which gave them "the right and ability to supervise, control, or stop the infringing conduct"—in other words, to shape or halt the film's development. See id. ¶¶ 8–9, 48, 116. Plaintiff's complaint also generally alleges that all Defendants targeted sales of the novel and the film at residents of Illinois; entered contracts or collaborated with an Illinois resident (Flynn); and/or injured Plaintiff by their "exploitation" of the novel and film within Illinois. Id. ¶ 3. The complaint acknowledges that Witherspoon resides in California and Papandrea resides in Australia. Id. ¶¶ 8–9.
Witherspoon and Papandrea submitted affidavits countering Plaintiff's narrative. See [76–1, 76–2]. Both agree that they spoke to Flynn about adapting the novel, either by phone or in Los Angeles, California. [76–1] ¶ 3.3 In their account, however, Twentieth Century Fox "reached out to Flynn directly" and secured the novel's film rights without their involvement. Id. ¶ 4. After reaching a deal with Flynn, Twentieth Century Fox entered a separate agreement with Witherspooon, Papandrea, and Dixon to compensate them for their earlier efforts to secure studio support for a film version of Gone Girl . See id. ¶¶ 3–4. That agreement accorded Witherspoon and Papandrea producer credits on the film. Id. ¶ 4. Witherspoon and Papandrea attest that they made no creative contributions to the film's storyline, exercised no control over its production, never visited Illinois in connection with the film, and played no role in distributing or advertising the film. See id. ¶¶ 4–8.
In response, Plaintiff offers a number of articles and public statements referencing Witherspoon and Papandrea's involvement with the film. See [83] at 7. In a 2015 speech, Witherspoon described optioning Gone Girl and stated that it was one of two films that her production company "made" that year. [83–3] at 6. News articles refer to Witherspoon and Papandrea optioning and producing the film, see [83–4, 83–5], although another article cited in Plaintiff's complaint reported that "Witherspoon and Papandrea had little to do with the production of ‘Gone Girl,’ " [55] at 4 n.5 (citing Jenelle Riley, Reese Witherspoon, Bruna Papandrea Push for Female–Driven Material with Pacific Standard , Variety (Oct. 7, 2014) ). Plaintiff notes that Witherspoon and Papandrea do not deny negotiating with Flynn for Gone Girl's film rights or optioning the novel while Flynn resided in Illinois. [83] at 8, 12.
After Twentieth Century Fox obtained the film rights, Defendant David Fincher signed on to direct and worked with Flynn to revise her adapted screenplay. Id. ¶ 25. Twentieth Century Fox released and distributed the movie in 2014, to substantial financial success. See id. ¶¶ 26, 91, 110.
Plaintiff claims that sometime between May 2008 and the novel's publication in 2012, Flynn had access to OTB3 and unlawfully incorporated elements of it into the novel. See id. ¶¶ 28, 43, 47, 48. According to Plaintiff, OTB3 reached Flynn through a network of connections passing through Flynn's literary agency.
In May 2008, Plaintiff emailed a copy of OTB3 to Pilar Alessandra, a screenwriting instructor and "script consultant." Id. ¶¶ 28–29. A few days later, Plaintiff met with Alessandra for advice on OTB3, after which Alessandra retained a hard copy of the screenplay. Id. ¶ 30. Around 2010, Alessandra contributed to a screenwriting instruction anthology, co-edited by Sherry Ellis and Laurie Lamson. See id. ¶¶ 31–33. In 2015, Alessandra interviewed Lamson on a podcast and noted that she and Lamson began corresponding around 2010. Id. ¶ 34.
The website for the Levine Greenberg Rostan literary agency (LGR) lists Ellis as one of its authors (though Ellis died in 2011). Id. ¶¶ 32, 36. LGR's website touts its editorial and development services for writers, and—at least in 2009—hyped its "co-agents in Hollywood" who handled "movie and television rights." Id. ¶¶ 37–40. In the acknowledgements section of the book Gone Girl , Flynn thanks LGR's name partners for their "advice" and "guidance." Id. ¶ 41.
Plaintiff alleges that LGR represented both Ellis and Flynn after Alessandra received a copy of OTB3 in 2008 and before Gone Girl's publication in 2012, while Ellis was collaborating with Alessandra. Id. ¶ 43. LGR served as Flynn's literary agent as of July 2011 and provided her with "editorial development services and writer collaboration services." Id. ¶¶ 44–45. A different firm—Creative Artists Agency (CAA)—represented Flynn with respect to film rights. Id. ¶ 45. Alessandra also had "professional relationships" with CAA representatives. Id. ¶ 46.
According to Plaintiff, Flynn gained access to OTB3 or "an unauthorized derivative version" of it "through her agents" before June 2012. Id. ¶ 47. The remaining Defendants "had access to OTB3's original creative elements" only through the novel and screenplay versions of Gone Girl . Id. ¶ 48.
On a motion to dismiss, this Court may consider materials referred to in the complaint and central to the plaintiff's claims. See Williamson v. Curran , 714 F.3d 432, 436 (7th Cir. 2013). In cases alleging copyright infringement, that rule generally encompasses the original and challenged works. See Hobbs v. John , 722 F.3d 1089, 1091 n.2 (7th Cir. 2013) ; see also [55] ¶¶ 1, 107–11, 115–18. Accordingly, this Court reviewed copies of OTB3 [71–2], and the novel [71–1] and film [41–2] versions of Gone Girl , and provides brief summaries of the material. Obviously, spoilers lie ahead for any reader who has not read or seen the works.
OTB3 opens with a shot of its central protagonist, Mary, immediately after a car accident. Her mother, June, asks in voice-over: "Do you ever really know anyone?" The action then flashes back to the first time Mary met her husband, Steve. Mary and her then-partner Carl come across Steve at a night-club and prevent him from driving drunk, which prompts Steve to pursue Mary. From there, the story unfolds chronologically through brief scenes of Steve and Mary's relationship and eventual marriage, which quickly becomes an unhappy one.
Steve—"charming," "confident," and "well-bred"—comes from a wealthy family that disapproves of Mary. Mary appears naive and vulnerable, insecure about Steve's reasons for marrying her. Carl, a racecar driver, stays in the picture, periodically showing up at Mary and Steve's house and provoking Steve's jealousy.
Steve and Mary's relationship deteriorates; Steve drinks heavily and seems to threaten Mary. Then, while Mary is driving, the two end up in the car crash depicted in the opening scene. Following the accident, Mary wakes to discover she has been in a coma for seven years. During that time, she has given birth to a son (Little Steve) and Steve has divorced her to marry Eileen, a "sleek, sophisticated" yoga instructor who has become close to Little Steve.
Mary's resentment of Steve and Eileen turns to rage as she sees herself shut out of Little Steve's life. When Carl shows up to visit Mary, the audience learns that the two of them planned the car accident, intending to kill Steve and profit from his life insurance policy. Carl and Mary had been having an affair, and Little Steve might be Carl's son.
Mary's increasingly angry and possessive behavior tips into the criminal as she stalks and threatens Steve. She then attempts to kill Steve at his hunting cabin; the two grapple in an increasingly violent...
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