Scott Rudin Dragged Into Plagiarism Battle Over Film He's Not Making

The Girls Cover - Publicity - P 2016
Courtesy of Penguin Random House

The Girls Cover - Publicity - P 2016

A 79-page complaint was filed on Wednesday in California federal court. The subject of this lawsuit is Emma Cline's best-selling novel, The Girls, as well as the supposed movie version that is forthcoming. The plaintiffs are represented by the prominent law firm of Boies Schiller Flexner, and with talk of spyware and hacking, it's hardly the typical kind of lawsuit alleging plagiarism. 

One problem: Scott Rudin Productions is a co-defendant in the case. The lawsuit asserts on information and belief that the production company (whose past hits include No Country for Old Men, The Truman Show and The Social Network) is currently making a film of Cline's novel. The plaintiffs demand an injunction. However, Rudin doesn't even own rights anymore to The Girls.

Time will tell if that's the only potential fault of a lawsuit that has begun to command a great deal of media attention not only because it involves a fairly amazing story of a literary romance gone spectacularly badly, but also due to the involvement and actions of a law firm still on the defensive from the Harvey Weinstein scandal.

One of the plaintiffs in the case is Chaz Reetz-Laiolo, a writer who was romantically involved and living with Cline in Berkeley, California, about seven years ago. The story of their relationship is complicated, but what's most essential for purposes of the litigation is that Reetz-Laiolo began using Cline's computer, which had been installed with keystroke-logging software. Allegedly, Cline used this to capture online passwords used by Reetz-Laiolo as well as two other individuals. It's further claimed in the lawsuit that she began reading his private emails plus more while also utilizing another online program to conceal her activity.

Eventually, the hefty complaint gets to allegation that The Girls, a coming-of-age tale about a young woman's confrontation with counterculture, was at least partly derived from Reetz-Laiolo's own work, including a draft film script titled All Sea.

"Cline used her secret, unlawful access to Reetz-Laiolo's computer and email account to steal numerous distinctive passages and phrases, scenes and scenic elements, sentence structures and other creative expressions from his published and unpublished written work," states the complaint. "Those stolen creative expressions were included into the draft of The Girls she ultimately sold to Random House and Scott Rudin Productions. She plagiarized some of these passages from writings that were publicly available or that he had shared with her. But she perpetrated her most critical theft of his writing three core, chronologically ordered scenes in the draft of The Girls by breaking into his Gmail and Yahoo accounts and/or remotely accessing his computer with the Refog spyware."

The same day Cline was sued, she filed a dueling lawsuit against Reetz-Laiolo and portrayed the events differently.

According to her, before their relationship, she had had already written stories that formed the "conceptual seeds" of The Girls and finished her novel some time after the two had broken up. During the relationship, Cline says Reetz-Laiolo was asked to read drafts for input and that the two had exchanged work with each other.

Cline also alleges that Reetz-Laiolo was "habitually unfaithful" to her and that his behavior "turned violent and abusive." She says he routinely read her email, text messages, Facebook messages and personal journal, and that in an effort to protect herself from him, she installed a free "keylogger" program. Later, Reetz-Laiolo bought Cline's computer, although both sides disagree on whether Cline ever attempted to wipe the hard drive clean and whether her alleged spying continued after the computer was sold and the two broke up.

The fact that spyware seemingly remained on the computer plus a later forensic analysis help to explain the beefy nature of Reetz-Laiolo' complaint, at least in regards to claims of wiretapping, invasion of privacy and violation of the Computer Fraud and Abuse Act. Those are probably the most serious claims. Cline's complaint characterizes the privacy beef as "long-stale" and part of an attempt "to leverage this trove of personal data as a weapon to shame and falsely accuse Cline," with The New Yorker adding that an early draft of his complaint had a section titled "Cline's History of Manipulating Older Men," with David Boies himself attached as the lawyer involved.

But some words on the separate copyright claim since Reetz-Laiolo is described as having been initially concerned about the infringement of his intellectual property and since the lawsuit states that a movie based on Cline's work "would be especially damaging to Reetz-Laiolo as many of the works that Cline stole from him, and that would be incorporated into the film, were written as screenplays."

There's been some armchair analysis already from Lila Shapiro at New York Magazine that "Plagiarism cases can be notoriously difficult to prove, especially between a pair of writers who once collaborated and critiqued each other’s work."

Well, copyright cases are certainly tough for plaintiffs, but we're not sure the latter proposition holds up given that in cases where there's a high degree of access to a work, generally the rule is that less similarity needs to be demonstrated. Many copyright lawsuits over film and literary properties emerge from those who come out of the woodwork to assert infringement, and without any stature in the business, they're bedeviled by a law that only protects expression, not general ideas. It doesn't seem like access will be much of a problem for Reetz-Laiolo, although he could run into other issues like an implied license defense if there really was some sort of collaboration.

There's also the notion in Shapiro's article that "ideas, images, and fragments of anecdotes from their lives together" aren't subject to copyright protection, but that analysis is too pat. While it's true that ideas and facts aren't copyright-worthy, and courts tend to disfavor short phrases, the arrangement of facts in a creative manner is definitely protected. Again, it's the expression that counts. What really matters is imaginative flourishes, and certainly while a judge will strip out anything that constitutes scene a faire, given the background of the case, a judge may be hard-pressed to dispense with this straight out of the gate. (Refer to Reetz-Laiolo's complaint and Cline's complaint for specific discussion of the alleged similarities, not to mention way more detail about the spying and odd relationships at hand.)

Then again, the claims asserted over the movie pose an entirely different analysis.

Rudin, along with Cline and Penguin Random House, is being sued for conversion. This might be the first instance where a producer is hit with such a claim for simply buying film rights to a book.

Based on the $2 million Rudin once spent to option rights, the complaint asserts, "Scott Rudin Productions intentionally and substantially interfered with Reetz-Laiolo's property by taking possession of his draft manuscripts, email communications, and ideas by way of its purchase of the movie rights to The Girls."

And the copyright claim...

"Upon information and belief, Scott Rudin Productions is currently making a film of Cline's novel The Girls, which novel contains crucial scenes copied from All Sea. As part of the process of making the film, Scott Rudin Productions is currently preparing materials including a script and storyboards that contain material copied from All Sea, in violation of 17 U.S.C. §§ 106(1), 501(a)."

Suing over an unfinished film is a controversial endeavor because there's no published expression on which to compare. There have been a couple recent attempts to enjoin films in preproduction (e.g. the "James Bond knockoff"), but there are good reasons why lawsuits over unfinished works might not be such a positive state of affairs. For one thing, the film may never be made anyway.

Most often, options for film rights have a set term — say, two years. Then, the option expires.

Based on what we've heard after speaking with various individuals close to this dispute, the attorneys at Boies Schiller never really investigated the current state of the film project. They knew, of course, that Rudin had acquired rights and never saw any press reports suggesting he wasn't going forward. That apparently was enough in their eyes to assert a copyright claim against his production company.

But we also have now come to learn that Rudin doesn't actually own the material and hasn't for some time now. At this point, he's not making a film version. What more can be said? Maybe the story behind the book deserves its own movie. Don't sue us for suggesting that.