Ninth Circuit Revives Playwright’s IP Suit Against Producers of “Shape of Water”

Steven T. Lowe

In a rare victory for screenwriters, on June 22, 2020, the United States Court of Appeals for the Ninth Circuit reversed the United States District Court for the Central District of California’s dismissal of a copyright infringement suit which alleged that Director Guillermo del Toro plagiarized Paul Zindel’s play, “Let Me Hear You Whisper,” in his film, “The Shape of Water.”

In a complaint first filed in February of 2018, David Zindel, the heir to Paul Zindel’s estate, claimed that the filmmakers behind the Academy Award winning film, “The Shape of Water,” violated copyright laws when they unlawfully adapted Zindel’s play for the big screen without permission.

According to the complaint, Zindel’s play was written in 1969 and tells the story of a lonely cleaning woman who, during the Cold War, works the graveyard shift at a scientific laboratory that conducts “animal experiments for sinister, military purposes.” There, she becomes enchanted by a “fantastic intelligent aquatic creature” (a dolphin), that has been held captive in a glass tank. She soon forms an emotional bond with the creature, discovering that it chooses to communicate only with her. When she learns that the authorities in the lab plan to “vivisect” the creature for the sake of scientific progress, she decides to help it escape in a rolling laundry cart and set it free at a dock that feeds into the ocean.

Published in at least ten print editions, adapted into two made-for-TV productions, and frequently taught in American schools, Zindel’s play has been widely read and performed for decades.

Bearing a remarkable resemblance to Zindel’s storyline, “The Shape of Water” centers on “a lonely janitorial cleaning woman, Elisa, who works at a laboratory facility that performs marine experiments for sinister, military purposes in the 1960s (during the height of the Cold War)…Inside one of the laboratories, Elisa discovers an aquatic creature of advanced intelligence (an amphibian man) confined to a glass tank, and begins a loving relationship with the creature, discovering that it can indeed communicate—but chooses to do so only with her. When she discovers that authorities at the laboratory plan to kill the creature via ‘vivisection,’…Elisa hatches a plan to sneak the creature out of the lab in a laundry cart and release him at a dock on an urban canal that feeds into the ocean, where he will finally be free.”

“The Shape of Water” was publicly released in December 2017 and garnered numerous accolades, including thirteen nominations for “Best Original Screenplay.”

On July 23, 2018, however, Judge Percy Anderson of the United States District Court for the Central District of California dismissed the lawsuit, finding that Zindel’s plot was too general to be protected, and thus the two works were not “substantially similar.”

Conversely, in reversing the case, the Ninth Circuit determined that the district court prematurely dismissed Zindel’s action because at this stage of the proceedings, “reasonable minds could differ” on whether “Let Me Hear You Whisper” and “The Shape of Water” shared substantial similarities. Additional evidence, the Court continued, including expert testimony would aid in the literary analysis needed to determine the “extent and qualitative importance” of the commonalities Zindel identified in the works—particularly their shared plot sequence. Therefore, such additional evidence would illuminate whether any similarities are in fact infringing, or mere unprotectable literary tropes.

On July 29, 2020, the Ninth Circuit denied the defendants petition for rehearing, thereby preserving the Court’s June 2020 ruling.

Zindel is represented by Marc Toberoff of Toberoff & Associates PC and Alex Kozinski of the Law Office of Alex Kozinski.

Fox, its affiliates and del Toro are represented by David Grossman and Jonathan Zavin of Loeb & Loeb LLP.

MacMillan is represented by Kelli L. Sager, Eric M. Stahl and Cydney Swofford Freeman of Davis Wright Tremaine LLP.

The case is David Zindel v. Fox Searchlight Pictures Inc. et al., case number 18-56087, in the U.S. Court of Appeals for the Ninth Circuit.