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Weller v. Flynn

United States District Court, N.D. Illinois, Eastern Division

May 21, 2018

GILLIAN FLYNN, et al., 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.

         I. Background[1]

         A. Development of the Works

         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 In December 2011, Defendant Leslie Dixon sent a copy of Flynn's unpublished manuscript to Defendant Laura Jeanne Reese Witherspoon.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.

         B. Access

         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.

         C. Content of the Works

         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.

         1. OTB3

         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 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.

         2. Alternate Version of OTB

         In 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, [84] at 5 n.1. This contradicts Plaintiff's complaint, see [55] ¶¶ 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.

         The 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], with [71-2].

         3. Gone Girl: Novel

         The 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).

         From 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.

         Part 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 staged ...

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