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IP/Entertainment Case Law Updates

Weller v. Flynn

In copyright infringement case involving novel and film Gone Girl, district court dismisses with prejudice plaintiff’s copyright infringement claim that Gone Girl infringed her screenplay “Out of the Blue,” finding (1) complaint failed to sufficiently allege Gone Girl author had access to screenplay, (2) works were not substantially similar, and (3) court lacked personal jurisdiction over producers who neither were involved with distribution of film, nor controlled production of film.

Plaintiff Leslie Waller brought a copyright infringement action against Gillian Flynn, the author of Gone Girl; her publisher; and Twentieth Century Fox, the filmmakers behind the adaptation of novel, alleging that the novel and film infringed plaintiff’s screenplay “Out of the Blue.” Plaintiff alleged that Flynn copied her screenplay after gaining access to it through a chain of professional connections (ultimately because various parties at different times were represented by the same agency), which the court found was speculative and attenuated, reasoning that she “simply fails to connect the dots.” To establish access, plaintiff was required to demonstrate a “reasonable possibility of access,” which the court held plaintiff failed to do, instead inviting speculation that some unidentified intermediary at Flynn’s agency, for some reason, showed Flynn – who was by then two years into her work on the novel – an unproduced screenplay by a writer who Flynn’s agent did not represent.

Even if plaintiff had demonstrated that defendants accessed her work, the works were not substantially similar as a matter of law, and any alleged similarities between the works were “standard to any story depicting a deteriorating marriage.” The court detailed the differences between the works, noting that both the female and male leads “possess different background, motives and temperaments” and stating that any meaningful comparisons “would be akin to saying Michael Corleone and George Bailey are similar simply because they both take over the family business during the turmoil following the death of their fathers.”

The court also rejected plaintiff’s argument that both works shared a central theme, “how well one person can really know another person,” explaining that plaintiff’s alleged theme would be too general to warrant protection, noting that this theme is a staple of literature and that “the list of relevant works might read like a syllabus for a freshman literature class.” Further, the court explained that even if plaintiff’s alleged theme was protectable, it is very different from the theme in Gone Girl, which the court explained “looks at the social facades that men and women assume, and what happens when those masks slip.” In contrast, plaintiff’s screenplay “has nothing terribly insightful to say about the human condition, and fails to provide any answer to the question.”

The court also examined the plots of both works and found that each work tells a different story and any shared plot elements, such as a “wife plotting against her husband, a jealous or vengeful lover, an alienated husband, and a woman who is more dangerous than she appears,” were unprotectable scenes a faire.

Further, plaintiff’s vicarious infringement claims against Reese Witherspoon and her former producing partner were dismissed for lack of personal jurisdiction, with the court explaining that Witherspoon and her co-producer “made no creative contributions to the film’s storyline, exercised no control over the film’s production, never visited Illinois in connection with the film, and played no role in distributing or advertising the film. 

Summary prepared by Jonathan Zavin and Peter Pottier