Three Ninth Circuit judges revived a copyright lawsuit claiming Oscar-winning film “The Shape of Water” plagiarized a Pulitzer prize-winning writer’s play, finding similarities between the works too great to warrant an outright dismissal.
David Zindel, the son of acclaimed writer Paul Zindel, claims “The Shape of Water” poached essential elements of his father’s 1969 play “Let Me Hear You Whisper.” The film, co-written and directed by Guillermo Del Toro, won four Academy awards including Best Picture in 2018, and was nominated for best original screenplay.
The film centers around a female janitor named Eliza who falls in love with an aquatic deity kept in a scientific lab used by the military. When she learns the creature will be killed, she helps it escape into the ocean by smuggling it out of the lab in a rolling laundry cart.
In Zindel’s play, a female janitor named Helen connects with an intelligent dolphin imprisoned in a medical lab, where it is experimented on by doctors. She too tries to help it escape via the laundry cart gambit, though unsuccessfully.
Monday’s ruling overturns a dismissal by U.S. District Judge Percy Anderson, who ruled in 2018 that the play and film told fundamentally different stories despite sharing some “superficial elements and some basic plot points.”
The three-judge Ninth Circuit panel, comprised of U.S. Circuit Judges Kim McLane Wardlaw and Kenneth Lee and U.S. District Judge Matthew Kennelly, sitting by designation from the Northern District of Illinois, sent the case back to Anderson. The panel found Anderson was too quick to dismiss the case since reasonable minds could differ on whether the two works are substantially similar.
“Though both works properly were presented to the district court, additional evidence, including expert testimony, would aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities that Zindel identified in the works’ expressive elements, particularly the plausibly alleged shared plot sequence,” the judges said in their unpublished memorandum. “Additional evidence would also illuminate whether any similarities are mere unprotectable literary tropes or scènes à faire.”
Wardlaw and Kennelly are Bill Clinton appointees and Lee was appointed by President Donald Trump.
Former Ninth Circuit judge Alex Kozinski, now a private practice attorney, argued for Zindel last year. “Ninth Circuit law strongly suggests cases like this should be decided on the merits. That didn’t happen in this case, which is why it was reversed,” Kozinski said by phone on Monday. “Juries are pretty perceptive and that’s why we have juries to decide cases like this.”
Attorney Jonathan Zavin with Loeb & Loeb LLP, who represents the filmmakers, did not return a phone call seeking comment.