Northern California Record

Saturday, December 14, 2019

Best-selling author's lawsuit is a novel in and of itself, says copyright infringement attorney

By Angela Underwood | Jul 17, 2018

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Lawsuit against Emma Cline could be a book itself, one copyright attorney says.

SAN FRANCISCO –– The recent plagiarism lawsuit against Emma Cline, the best-selling author of "The Girls," reads like a book to one copyright expert.

Dr. Deborah Wagnon, an attorney and Middle Tennessee State University associate professor, recently discussed the legal issue with the Northern California Record

On June 28, Judge William H. Orrick of the Northern District of California found Cline did not steal writer Chaz Reetz-Laiolo's work during the couple's three year relationship. The ruling stems from separate lawsuits filed by Cline and Reetz-Laiolo after the relationship ended.

Dr. Deborah Wagnon, attorney and associate professor

Wagnon said she cannot recall a ruling with such entertaining subheadings, such as "his motion" and "her motion," that aptly describes the “he said, she said” elements of the claims.

“In my view, this case is the toxic mix of romance, ambition, the ‘analog’ creativity of authorship, the digital universe providing so many ways to invade and torment the other, and the resulting conflict under a very bright light provided by a New York Times bestseller and the resulting fame to a young author, Ms. Cline,” Wagnon said. 

Wagnon said the multiple claims from each person required separate consideration and evidence.

“The court’s task in culling down this mass into an issue that is clear for consideration is complex, and frankly, takes great judicial talent and calm to attack it,’” Wagnon said.

Speaking solely to the copyright infringement claim, and not the allegations of domestic abuse and infidelity, Wagnon said Orrick’s ruling was fair; but not necessarily unique.

“I frankly find it to be no departure from the tests established as far back as 1930 by Justice Learned Hand, when he articulated the test for character protections as that of ‘adequately delineated’ characters as opposed to the ‘idea’ of one,” she said.

“This ruling applies well-established standards for what is protectable and what is not, and does so within the motion to dismiss limitation that it is a ruling based upon a matter of law, or the 'extrinsic test' applied in copyright cases trying to ascertain whether an allegedly infringing work is 'substantially similar' and thus an infringement,” Wagnon said.

“Judge Orrick applies the extrinsic test to the plot, sequence of events, dialogue and characters of the underlying work 'All Sea' and the allegedly infringing work 'The Girls,' and concludes that they are not substantially similar per that objective test, and thus, 'The Girls' is not infringing,” she said.

If the case was an actual novel, it would be a disturbing read, Wagnon said.

“This case is a nightmare in many ways, and unfortunately, using our Courts’ time for romance gone wrong and vendetta in the digital age,” Wagnon said. "One wonders how Penguin/Random House might be altering their writer agreements for future signings regarding the warranties and representations clause."

"Must a new author now warrant that he or she has never dated someone that might have ‘kompromat’ on you?" she said.

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Middle Tennessee State UniversityU.S. District Court for the Northern District of California

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Deborah L. Wagnon