California Federal Court Puts Ex-Boyfriend’s Copyright Claims over The Girls to Bed (Again)
Reprinted with permission from Media Law Resource Center
On November 19, 2018 Judge William H. Orrick of the Northern District of California dismissed with prejudice copyright and related claims against author Emma Cline and her publisher Random House that had been asserted by Cline’s ex-boyfriend Chaz Reetz-Laiolo in a fifth amended complaint. Emma Cline v. Reetz-Laiolo et al., Related Case Nos. 3:17-cv-06866-WHO and 3:17-cv-06867-WHO (Nov. 19, 2018) (“Opinion”). The decision finally put to rest a years-long saga over Cline’s debut novel The Girls, during which Reetz-Laiolo relentlessly threatened baseless legal claims against Cline, even going so far as to leverage extraordinarily personal records of Cline’s sexual history to threaten her into settlement (with the help of his attorneys at Boies Schiller Flexner).
An earlier decision by Judge Orrick on Reetz-Laiolo’s copyright claims found no substantial similarity of protected expression as a matter of law between his unpublished screenplay All Sea and Cline’s novel The Girls. See Emma Cline v. Reetz-Laiolo, 329 F. Supp. 3d 1000 (N.D. Cal. 2018). The court nevertheless allowed Reetz-Laiolo to amend his claims to the extent he could plausibly plead a theory of “intermediate copying,” premised on the theory that Cline had at least unlawfully downloaded a copy of his work. Reetz-Laiolo took the court’s narrow invitation to its most extreme end, alleging not only that such a download had occurred, but also attempting to spin this theory into a vicarious infringement claim against Cline’s publisher Random House and claims for disgorgement of profits from The Girls. He alleged – notwithstanding the earlier substantial similarity ruling – that Cline and her publisher had been “unjustly enriched” by non-protectable material and “ideas” from his work that had been incorporated into The Girls. Judge Orrick correctly rejected this perversion of copyright law, holding that Reetz-Laiolo had not even plausibly alleged that Cline had downloaded his unpublished screenplay, much less that he could somehow be entitled to a remedy arising from her subsequent, non-infringing novel. See Opinion at *25-27.
Judge Orrick’s opinion is the latest in a small but uniform set of decisions rejecting the application of the “intermediate copying” doctrine to literary works. See also Madrid v. Chronicle Books, 209 F. Supp. 2d 1227 (D. Wyo. 2002); Quirk v. Sony Pictures Entm’t, Inc., No. C 11-3773 RS, 2013 WL 1345075 (N.D. Cal. Apr. 2, 2013); Esplanade Prods., Inc. v. Walt Disney Co., No. CV1702185MWFJCX, 2017 WL 5635027 (C.D. Cal. Nov. 8, 2017). Under the “intermediate copying” theory, courts have allowed copyright claims to proceed not on the basis of the defendant’s final work, but upon an initial unlawful copying of the plaintiff’s work – typically computer code – by defendant, in order to “reverse engineer” the work and create a derivative, but technically non-infringing, final product. The core of the theory is an acknowledgment that even a single unlawful download is a prima facie infringement – though in many cases courts have ultimately found the intermediate copy to be protected by fair use. See, e.g., Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1992), as amended (Jan. 6, 1993). In his opinion, Judge Orrick acknowledged the soundness of the intermediate copying theory, but noted its fundamental mismatch in the context of literary works, where the sine qua non of any copyright claim is substantial similarity of protected expression:
Just one year ago, a court in the central district [of California] was “unable to locate a single case in which he Sega “intermediate copying” theory [had] been extended to impose liability based upon the copying of non-software-related work (e.g., a script, book, cartoon, etc.) in the course of creating a new work that is ultimately dissimilar to the plaintiff’s work.” Esplanade Prods., Inc. v. Walt Disney Co., No. CV1702185MWFJCX, 2017 WL 5635027, at *18 (C.D. Cal. Nov. 8, 2017) (appeal pending). Indeed, intermediate copying is generally limited to cases involving software. See Order at 34–35 (citing cases). This distinction makes sense because when copied code is used as a building block to create something new, “bits of code can be found within the programs.” See Madrid v. Chronicle Books, 209 F. Supp. 2d 1227, 1236 (D. Wyo. 2002). “This is copying.” Id. With written language, however, “[t]he intermediate copying concept cannot result in copyright infringement without the basic component of substantial similarity.” Id. “Copying deleted or so disguised as to be unrecognizable is not copying.” See v. Durang, 711 F.2d 141, 142 (9th Cir. 1983).
Opinion at *26-27. The court therefore concluded that, because “Reetz-Laiolo asserts infringement only of the final version of The Girls,” and the court had “already determined that there are ‘few objective similarities, and no substantial ones’ between [Reetz-Laiolo’s screenplay] All Sea and The Girls, he cannot state a claim.” Id. at. *27.
In addition, the Court reject Reetz-Laiolo’s attempt to bring conversion, civil theft, and unjust enrichment claims based on Cline’s alleged copying of his work, finding these claims were preempted by the Copyright Act. Id. at *27-30. Like the copyright claims, these claims were dismissed with prejudice.
Pursuant to Judge Orrick’s decision, Cline’s publisher Random House has been dismissed from the case entirely. Reetz-Laiolo and his co-plaintiffs will proceed with other claims against Cline that have nothing to do with The Girls or any other writing by her. For Cline’s part, she has raised affirmative claims against Reetz-Laiolo based on his and his attorneys’ outrageous pre-litigation conduct, which have survived a motion to dismiss. While the case proceeds on other grounds, Cline’s sole and exclusive authorship of her debut novel has been absolutely vindicated.
Defendants Emma Cline and Penguin Random House LLC are represented by Elizabeth A. McNamara and Abigail B. Everdell of Davis Wright Tremaine LLP, Michael A. Vatis of Steptoe & Johnson LLP, and Thomas R. Burke of Davis Wright Tremaine LLP.
Plaintiffs Chaz Reetz-Laiolo, Kari Bernard, and Kristin Kiesel are represented by Edward Normand, Amos Friedland, Nathan Holcomb, and Kyle Roche of Boies Schiller Flexner LLP; Kevin Smith, Sapna Pall, and Benjamin Diessel of Wiggin and Dana LLP; and Ethan A. Balogh of Coleman & Balogh LLP.