Emma Cline HeadshotEmma Cline, as an author, should be on top of the world.

Her Debut novel, The Girls, spent some 12 weeks on the New York Times bestseller list. She reportedly got a $2 million advance on a three-book series that includes it and made Forbes’ 30 Under 30 List for Media in 2017. Her book was so eagerly anticipated that she even sold the movie rights to it before it was published.

Cline has clearly reached a level of success as an author that few will ever know.

But much of the press and talk about her lately has been much more dark in nature. Instead of celebrating a wildly successful novel, she’s now engaged in a nasty legal fight with her ex boyfriend, Chaz Reetz-Laiolo.

But beyond a bitter fight between two former lovers, Reetz-Laiolo is also accusing Cline of plagiarism, an accusation that’s made almost as many headlines as the other details that have come out.

Still, the controversy does leave open the simple question: Did Cline plagiarize and, if so, how likely is Reetz-Laiolo to emerge victorious in the case?

To answer those questions we have to first dive deeper into the case.

The Basics of the Story

The Girls CoverWith this dispute, there’s very little that’s agreed upon by everyone.

What is agreed is that the pair met in 2009 and started a multi-year relationship that, by all accounts, was tumultuous.

At one point during that relationship Cline installed spyware on her laptop knowing that Reetz-Laiolo regularly used it. According to Cline, she did this in order to catch Reetz-Laiolo cheating, but Reetz-Laiolo has said the spyware was used to obtain his email passwords and access a screenplay that he had been working on.

Reetz-Laiolo further claims that she left the spyware on the laptop when she sold it to him in 2013, possibly even upgrading it to be accessed remotely. Cline denies this part of the allegation but Reetz-Laiolo says this could have given her still further access to his screenplay.

It’s that screenplay that’s at the heart of the plagiarism allegations. According to Reetz-Laiolo, portions of The Girls were lifted from that screenplay. Much of the complaint focuses on ideas, such as a sequence that involves body brushing but at least one small section of text allegedly closely resembles a section of his screenplay.

Despite the challenges, The Girls was released in June 2016 and Reetz-Laiolo felt strongly enough about the similarities to file a lawsuit for copyright infringement, seeking both unspecified damages and to halt sale of the book. Cline responded immediately and filed a counter-lawsuit seeking a declaration of non-infringement and $75,000 in damages.

The court now has the unenviable task of parsing through this case and deciding who is in the right.

Just the Legal Facts, Please

Though the story around the lawsuit makes for very compelling headlines, the legal arguments (and the plagiarism arguments) involved are actually very simple.

Reetz-Laiolo argues that Cline gained access to an unpublished screenplay of his and then used portions of it when writing The Girls. If we look at it solely from that angle, the case suddenly gets a lot more clear.

For Reetz-Laiolo to succeed on his copyright claims, he must first prove three things:

  1. Access to the Material: He must prove that Cline had access to the original material. This what all of the talk about the spyware is about. However, given that the two were romantically involved, it is likely there were other potential points of access.
  2. Copying of Protected Material: Next, he must prove that Cline copied something that is protectable under copyright law. This is where his case seems to fall apart. Though copying ideas without attribution can be plagiarism, they are not protected under copyright. It will be difficult to prove that any of the content allegedly copied is copyright protected, he if can prove it was copied at all. In short, proving plagiarism will be very difficult, copyright infringement nearly impossible.
  3. That The Copying is An Infringement: Finally, he must prove that the use was not a fair use. Though fair use is an affirmative defense, meaning it would be up to Cline to prove the use is a fair use, not his job to prove it isn’t, that’s still going to be a tall order for Reetz-Laiolo. Short passages from a screenplay, if they were copied at all, would very likely be a fair use.

To call this an uphill battle is an understatement. Being able to prove access (or at least potential access) and similarity does not make a copyright infringement case. Even we grant every one of Reetz-Laiolo’s allegations, it doesn’t necessarily rise to copyright infringement unless what she copied was both protectable under copyright and significant enough to be an infringement.

However, that does not appear to be the case.

Simply put, unless some thing drastic changes in this lawsuit, things do not look well for Reetz-Laiolo’s efforts. While there are a lot of juicy allegations from a gossip standpoint, they don’t, as of right now, add up to much from a copyright perspective.

Bottom Line

Generally, I don’t like to speculate on why people file lawsuits. I usually prefer to assume that, if someone is spending the time and resources to take someone to court, that they usually have at least some genuine belief they have been wronged.

But, regardless of intention, the outcome of this lawsuit so far is clear and it’s a lawsuit that is doing more to air dirty laundry than it is to advance advance any copyright issues.

Most likely, if Cline is liable for anything, it isn’t copyright infringement. If Reetz-Laiolo can show cline used the spyware in a way that violated the law, he may have an argument there.

But providing that The Girls is a copyright infringement of his unpublished screenplay, that is a very tall order and one that I don’t feel Reetz-Laiolo is up to at this time.

With litigation, anything can change, but right now this lawsuit is doing more to feed gossip columnists than to raise serious copyright issues.

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