On July 29, 2020, the en banc Ninth Circuit Court of Appeals refused to rehear arguments on a three-judge panel’s June 22, 2020, revival of a copyright suit claiming Oscar-winning film “The Shape of Water” plagiarized a Pulitzer prize-winning writer’s play, given a finding that similarities between the works were too great to merit an outright dismissal.
In the complaint, David Zindel, the son of author Paul Zindel, claims “The Shape of Water” poached multiple elements of the elder Zindel’s 1969 play “Let Me Hear You Whisper.” The film, directed and co-written by Guillermo Del Toro, won multiple Academy awards, including Best Picture, in 2018. The film is about a female janitor who falls in love with an aquatic deity kept in a military scientific lab. When she learns the creature will be killed, she helps it escape into the ocean by smuggling it out of the lab in a laundry cart. In Zindel’s play, a female janitor connects with a dolphin imprisoned in a medical lab, where it is experimented on by doctors. She tries to help it escape, also using a laundry cart, though she is unsuccessful.
The three-judge Ninth Circuit panel in June overturned a dismissal by the District Court judge Percy Anderson, who ruled in 2018 that the play and film told fundamentally different stories, despite sharing “superficial elements and some basic plot points.” The panel found that the District Court judge 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in the works’ expressive elements, particularly the plausibly alleged shared plot sequence,” the judges said in their unpublished memorandum.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.”
Former Ninth Circuit judge Alex Kozinski, now in private practice, argued successfully for Zindel at the June hearing.