United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE
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. . 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
Development of the Works
2005, Plaintiff wrote a screenplay titled Out of the
Blue.  ¶¶ 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.
March 2009, Random House-Flynn's publisher-advanced Flynn
$150, 000 for a new novel. Id. ¶¶
18-19. 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Flynn's unpublished manuscript to Defendant Laura Jeanne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. ¶¶
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.
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. 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.
response, Plaintiff offers a number of articles and public
statements referencing Witherspoon and Papandrea's
involvement with the film. See  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, '”  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.  at 8, 12.
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.
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.
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.
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.
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.
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.
Content of the Works
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  ¶¶ 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.
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.
” “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
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
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.
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 fight that culminates in violent sex.
This rekindles their regard for each other and they begin an
affair, with Steve drawn to Mary's newly-revealed
aggressiveness. Steve loses interest in Eileen, and he and
Mary devise a plan to kill Eileen and resume their life as a
family with Little Steve. To that end, Steve lures Eileen to
the hunting cabin. Mary attempts to shoot Eileen, who
escapes. Carl appears, shoots and kills Steve, and drives
away. Mary and Eileen then try to kill each other, and Eileen
succeeds. OTB3 ends with a final scene between Carl and
Steve's estranged brother Mark; the audience realizes
that Carl and Mark are lovers who have been plotting
Steve's downfall all along.
Alternate Version of OTB
response to Defendants' motions to dismiss, Plaintiff
contends that her infringed work is not OTB3 but an
earlier draft of the screenplay, [84-2], which Plaintiff now
says is the version she gave Alessandra in 2008,  at 5
n.1. This contradicts Plaintiff's complaint, see
 ¶¶ 28, 30, and leaves unclear whether the
draft that Plaintiff now offers is even protected by
copyright-a prerequisite for her claims. Although plaintiffs
generally cannot amend a complaint through briefs opposing a
motion to dismiss, see, e.g., Perkins v.
Silverstein, 939 F.2d 463, 470 n.6 (7th Cir. 1991), the
new draft that Plaintiff provided so closely resembles OTB3
that this Court need not expend resources in permitting a
separate, superfluous amendment. Rather, this Court's
analysis of OTB3 applies equally to this new version of the
screenplay, and this Court briefly notes the minor,
immaterial differences between the two drafts.
alternate version of Out of the Blue follows the
same structure as OTB3, opening with a flash-forward to Mary
and Steve's accident before tracing their relationship
through its deterioration, Mary's coma, and the bloody
shoot-out at Steve's hunting cabin. The alternate version
provides some additional details about Mary (“she read
wedding magazines her whole life”) and Steve
(“like other children of the wealthy, he presents well
by hiding emotion”). It also includes new or expanded
scenes of Steve's family, fleshing out his parents'
snobbery and Mark's troubled relationship with his
family, stemming from their homophobia. Finally, when Mary
and Steve enact their plan to kill Eileen, Steve befriends a
couple of hunters while Mary stalks Eileen. The remaining
scenes substantially match those in OTB3, as do the themes,
dialogue, and characters. Compare [84-2],
Gone Girl: Novel
novel is divided into three parts. Part One opens on
“The Day Of” the disappearance of Amy Dunne, as
her husband, Nick, wakes up on the morning of their fifth
anniversary. In the opening passage, Nick conjures an image
of his wife's head and recalls how he has often wondered:
“What are you thinking Amy? How are you feeling? Who
are you? What have we done to each other?” A brief
exposition establishes that Nick and Amy used to be magazine
writers in New York City, but lost their jobs in the Great
Recession and moved back to Nick's Missouri hometown when
his mother got sick. Amy, a native New Yorker, is the child
of two psychologists who wrote a series of instructive
children's books about “Amazing Amy, ” an
idealized version of her. The chapter proceeds as Nick
narrates (most of) his activities in the hours before
Amy's disappearance, which he discovers upon returning
from the bar that he runs with his twin sister Margo (Go).
there, Part One alternates between Nick's present-the
days following Amy's disappearance-and Amy's past,
depicted through her diary entries. The diary chapters
narrate Nick and Amy's courtship and marriage, eventually
catching up to the day of Amy's disappearance. Nick's
narrative reveals his estrangement from Amy and his growing
self-consciousness and discomfort with the scrutiny he
receives from the public, the media, and the police in the
wake of Amy's disappearance. Nick relates his troubled
relationship with his father-an embittered, misogynist
presence in Nick's life-and displays his desperate need
for approval. As Nick notes the lies he tells the police and
pursues an affair with a much younger woman, his chapters
raise the reader's suspicion that he is an unreliable
narrator who may have actually killed Amy. Mid-investigation,
the public revelation that Amy was pregnant when she
disappeared increases national outrage over Amy's case.
Unfolding in parallel, Amy's diary entries record her
deteriorating relationship with Nick and his spiraling
behavior, from maxing out their credit on luxury goods, to
infidelity, to domestic violence.
One closes, however, with the reveal that the expensive items
Nick supposedly bought are stashed-without his knowledge-in
Go's woodshed. Part Two opens with Amy-very much
alive-narrating how she staged her disappearance. Along with
the reader, Nick realizes that Amy framed him for her own
murder, in revenge for his infidelity. Amy's
“diary” entries are fake, one of many carefully