                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



               United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Submitted May 11, 2015 *
                                Decided October 1, 2015

                                        Before

                           JOEL M. FLAUM, Circuit Judge

                           MICHAEL S. KANNE, Circuit Judge

                           ANN CLAIRE WILLIAMS, Circuit Judge

No. 14-3355

CAROL SISSOM,                                  Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Southern District of
                                               Indiana, Indianapolis Division.
      v.
                                               No. 1:13-cv-882-WTL-TAB
ROBERT SNOW, et al.,
    Defendants-Appellees.                      William T. Lawrence,
                                               Judge.

                                      ORDER

      The circumstances surrounding the investigation of three murders in
Indianapolis, Indiana, provided the subject matter for two non-fiction books, a 2006
book by Carol Sissom, and a 2012 book by Robert Snow. In this appeal challenging the
dismissal of her suit against Snow and his booksellers, Sissom contends that Snow’s
book infringes on the copyright of her composition. Because Snow’s book restates only

      *After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appellant’s motion for an oral hearing is denied, and the appeal
is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(C).
No. 14-3355                                                                          Page 2

historical events, the defendants did not infringe on any protected expression, so we
affirm.

        In December 1971 three Indianapolis businessmen were murdered at a house on
the city’s east side. Police were unable to solve the crime, which gained notoriety as the
years passed and no one was identified as the assailant. The case was still cold 20 years
later when Sissom, a freelance journalist, became interested in it. She first investigated
the case while writing a series of newspaper articles, and then continued the
investigation for its own sake. Eventually Sissom believed she had found the killers,
concluding that they were motivated either by jealousy or secret payments from the
Nixon Administration to cover up illegal campaign contributions from Jimmy Hoffa.
The men accused by Sissom were charged with the murders, but the charges were
quickly dropped, and the case remained open. In 2003 the Indianapolis police received
a letter confessing to the murders. Sissom got wind of the confession, and, believing it
to have validated her work, soon memorialized her investigation and conclusions in
book form, first in her 2006 book The LaSalle Street Murders, and a few years later in a
trilogy bearing the same name.

       The 2003 letter, which had been written by an individual other than those
charged in connection with Sissom’s investigation, prompted an Indianapolis detective
to take a fresh look at the case. That detective ultimately concluded that the letter’s
author, who claimed that he had been paid to commit the murders in order to obtain an
insurance payout, was telling the truth. On the basis of the detective’s conclusion, the
Indianapolis police decided to close the case. That closure precipitated Robert Snow’s
Slaughter on North LaSalle, a book detailing the original investigation, Sissom’s work in
the 90s, and the case’s conclusion.

        Though critical of Sissom’s methods and conclusions, the middle third of Snow’s
account relies heavily on Sissom’s 2006 work, and he credits Sissom’s book as his source
of information about her investigation and findings. In that middle portion, Snow
restates many historical facts that appear in The LaSalle Street Murders. We provide three
illustrative examples.

          First, early on in her book, Sissom explained how she began her investigation: “I
made my first inquiry at the Marion County Public Library. It was there that a woman
told me about a sensational murder case that happened when I was just a small school
girl. . . . When I looked at my calendar I realized that the 20-year anniversary of the
LaSalle Street Murders was coming up.” Snow summarized this information about
No. 14-3355                                                                       Page 3

Sissom’s start as follows: “Eventually, a librarian at the Indianapolis Marion County
Public Library pointed [Sissom] toward the North LaSalle Street Murders, still unsolved
and whose twentieth anniversary was coming up in December of that year.” A second
example reflects how Sissom got her first “break” in the case. She wrote that it came
when she located a potential witness: “My second goal was to find [Margo], the
waitress at the bar, ‘Tommy’s Starlight Palladium’ in 1971. . . . With a little
tenacity—and the speed of the fingers on my right hand dancing on my telephone
keyboard, I found [Margo]! She was a go-go dancer at a seedy establishment near South
Meridian Street, not too far from downtown Indianapolis.” Snow recapped how Sissom
found Margo: “Next, [Sissom] set out to find the woman named Margo, whom she said
she eventually located working at a run-down bar in Indianapolis.” As a final example,
Sissom elaborated on her interaction with Floyd Chastain, a convicted murderer
incarcerated in a Florida state prison and one of the men she eventually accused of the
murders. About their first conversation Sissom wrote: “The next day, I received a call
that I will never forget as long as I live. It was a phone call that pierced my afternoon
with both excitement and terror at the same time. It was about 2:20 p.m. and a brilliant,
sunny day.” Snow summarized the same events: “But then, on September 1st, 1992,
Chastain called [Sissom] from the prison in Florida.”

        Similarities like these in Snow’s book prompted Sissom to bring this action for
copyright infringement against Snow and others in the chain of distribution. Sissom’s
complaint asserted generally that part of Snow’s book was an unlawful paraphrase of
her own works on the subject, and she later identified 194 specific instances (of which
we have just given three representative examples) where Slaughter on North LaSalle, she
believed, unlawfully copied from The LaSalle Street Murders. (Sissom also brought claims
for intentional infliction of emotional distress and defamation, but she voluntarily
dismissed those supplemental claims with prejudice, and then repleaded only the
copyright claim, so we forgo any analysis of those supplemental claims.)

       The defendants moved to dismiss the complaint for failure to state a claim, and
submitted to the district court the two books that we have mentioned and that Sissom
discusses throughout her complaint. The district court granted the motion, concluding
that Snow’s book relied on Sissom’s only for non-copyrightable facts, and so the
defendants were entitled to judgment as a matter of law. Sissom asked the court to
reconsider, asserting that she should to be permitted to replead or discover facts in
support of her claim. The court denied her motion.
No. 14-3355                                                                            Page 4

       Before we turn to the merits of Sissom’s arguments on appeal, we consider the
procedural posture of the case. The district court resolved the case under FED. R. CIV. P.
12(b)(6) while also considering the books themselves, material technically outside the
pleadings. The court reasoned that books were incorporated by reference into Sissom’s
complaint, but the authority on which the district court relied to consider the books’
content expressly declined to endorse using Rule 12(b)(6) for this course of action,
instead treating the consideration of matters outside the pleadings as a ruling on
summary judgment. See Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 691 (7th
Cir. 2012); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002).
Moreover, the complaint refers to multiple books by Sissom, not just The LaSalle Street
Murders, and the district court was obligated to consider the entire complaint, including
all material incorporated by reference. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322–23 (2007).

       Any error, however, is harmless. Sissom does not contend that she was caught
off guard by the court’s effective conversion of the defendant’s motion to one for
summary judgment. Nor does she contend that any of the books not in the record
contained content, copyrightable or otherwise, necessary to resolve her claim. And, of
course, since the district court’s judgment rests on a conclusion of law—that the
material in Sissom’s book is not entitled to copyright protection, see Pivot Point Int’l, Inc.
v. Charlene Prods., Inc., 372 F.3d 913, 919 (7th Cir. 2004)—our review is plenary,
regardless of the procedural context.

       Turning to the merits, Sissom concedes that Snow could lawfully use factual bits
and pieces of her work, but contends that his extensive reliance on her book infringed
upon her copyright. Sissom correctly points out that the middle portion of Snow’s book
essentially restates the same chronology of events and the conclusions that Sissom
reached in hers, using the third person rather than the first. Sissom appears to invoke
the concept of a derivative work, which the Copyright Act defines as “a work based
upon one or more preexisting works,” a definition that includes works “consisting of
editorial revisions, annotations, or elaborations.” 17 U.S.C. § 101; see generally Gracen v.
Bradford Exchange, 698 F.2d 300 (7th Cir. 1983). The creator of a derivative work
infringes on the protected portion of the original unless that person obtains a license
from the owner of the underlying copyright. See Schrock v. Learning Curve Int’l, Inc., 586
F.3d 513, 523 (7th Cir. 2009).

       But none of the material that Sissom says is taken from her book is derivative of
protectable material. The middle part of Snow’s book, from the chronology of Sissom’s
No. 14-3355                                                                             Page 5

investigation to her ultimate conclusions, simply restates historical events—the murder
investigation and Sissom’s role in it—and adds a bit of Snow’s own commentary about
those events. It is a foundation of copyright law that only the form of an author’s
expression is protectable, not the facts or ideas being expressed. See Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985). This principle remains true no
matter how much factual content is borrowed. See Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., Inc., 499 U.S. 340, 349–50 (1991); Hoehling v. Universal City Studios, Inc., 618 F.2d 972,
978 (2d Cir. 1980) (“[B]road latitude must be granted to subsequent authors who make
use of historical subject matter, including theories or plots.”). Because Snow merely
retold historical events using his own, more succinct style of expression, he did not
appropriate any copyrightable expression. Therefore Sissom’s copyright claim fails.

       Sissom counters that her book is not entirely factual, and thus Snow’s retelling
necessarily infringes on her creation. To prove that her account is part fiction, she refers
us to the “Disclaimer Page” that prefaces The LaSalle Street Murders. But that page
undercuts her argument. There, she emphasizes that the book is “the true story” and
“every part of this book is accurate,” consisting of “verif[ied] facts.” Based on her
admission, then, the book’s content is unprotected factual material. It is true that later in
the disclaimer she backpedals, suggesting that some parts of her book “have been
fictionalized in order to move the story along.” But in her complaint and her opposition
to the motion to dismiss, she asserts that the defendants infringed only on those
portions of her book that describe “her feelings, perceptions, thoughts and actions.”
These are actual, historical events. This acknowledgement in her pleadings binds her on
our review of the district court’s ruling. See Specht v. Google Inc., 747 F.3d 929, 933 (7th
Cir. 2014). And since, as we have observed, historical truth is not protected expression,
she fails to support her federal claim for infringement.

        In addition to her federal claim, Sissom raises a host of novel, confusing, and
ultimately meritless arguments generally based on Indiana common law. Asserting that
Snow’s work has invaded her privacy, she first refers us to the common law of
copyright. Any argument grounded in a right of privacy is puzzling, given that Sissom
published her own book and inserted herself into the historical record of the case. (For
that reason, we reject her attempt to seek relief under the tort of invasion of privacy by
false light.) But in any event, while the common law of copyright could be invoked in
limited circumstances to protect personal privacy, see Harper & Row, 471 U.S. at 554, it
does not apply here because it was abolished for works like Sissom’s created after 1977,
see Hays v. Sony Corp., 847 F.2d 412, 415 (7th Cir. 1988). Sissom also appears to allege
something akin to trademark dilution, cf. Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496,
No. 14-3355                                                                         Page 6

503 (7th Cir. 2014), but that argument gets her nowhere. Trademark dilution has no
analogue in copyright, see id., and in any case to be successful the claim would require
some underlying copyrightable expression, see Moseley v. V Secret Catalogue, Inc., 537
U.S. 418, 429–30 (2003), which is absent here. Sissom finally seeks to revive her
voluntarily dismissed defamation claim. But she chose to dismiss it with prejudice, and
she has given us no reason to conclude that the district court erred in honoring that
choice. See Palka v. City of Chicago, 662 F.3d 428, 436 (7th Cir. 2011).

       Finally, the district court did not abuse its discretion in refusing to allow Sissom
to “start over” with a fresh complaint based on the same two books. Any amendment
alleging infringement based on the same facts would be futile. See Gandhi v. Sitara
Capital Mgmt., Inc., 721 F.3d 865, 869 (7th Cir. 2013).
                                                                                  AFFIRMED.
