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Ninth Circuit Asked to Weigh in on "The Shape of Water" Copyright Suit

Filmmaker Guillermo del Toro, winner of the Best Director and Best Picture awards for 'The Shape of Water,' poses in the press room during the 90th Annual Academy Awards at Hollywood & Highland Center on March 4, 2018 in Hollywood, California.  (Photo by Frazer Harrison/Getty Images)
By Laura Temme, Esq. on December 17, 2019 9:16 AM

There's nothing new under the sun - including, apparently, the story of a female janitor connecting with an aquatic creature during the Cold War.

The estate of the late playwright Paul Zindel has asked the Ninth Circuit Court of Appeals to weigh in on claims that Guillermo del Toro's acclaimed film "The Shape of Water" copied the premise of Zindel's 1969 play "Let Me Hear You Whisper."

Does The Complaint Hold Water?

On the surface, the two works seem remarkably similar. In "The Shape of Water," a mute woman working as a cleaner at a government research facility in the 1960's rescues and falls in love with an amphibious humanoid trapped in the facility. Meanwhile, in "Let Me Hear You Whisper," an introverted female janitor at a private research facility connects with a dolphin being subjected to experimentation, eventually teaching it to speak.

The lawsuit pointed to 60 alleged similarities between the play and the film, including odd details like a record player in a laboratory, a decapitated cat, and an escape in a laundry cart.

Del Toro strongly denied allegations of infringement, saying he had never heard of Zindel's play and that the idea for "The Shape of Water" was pitched by producer Daniel Kraus in 2011. Despite news of the lawsuit breaking just two weeks before the 2017 Academy Awards, "The Shape of Water" went on to win four Oscars (including Best Picture).

Let Me Hear Your Infringement Analysis

The suit was dismissed by Judge Percy Anderson in the Central District of California last year, who found the play and film shared only a basic premise:

"Although the play and film share the basic premise of an employee at a scientific facility deciding to free a creature that is subjected to scientific experiments, that concept is too general to be protected."

The court reasoned that many of the other similarities between the two works naturally flowed from this idea - making them unprotectable as well. To be sure, the idea of unscrupulous researchers as antagonists is nothing new and appears throughout pop culture history (Netflix's Stranger Things comes to mind). Moreover, anyone who has seen "Free Willy" will find the story of an aquatic creature being freed from captivity all too familiar.

Zindel's estate based its argument on the "inverse ratio rule," which provides that when there is strong evidence of access, fewer compelling similarities are needed to infer copying. However, Judge Anderson was unconvinced, pointing out that this rule only applies to findings of copying, not unlawful appropriation.

The case was heard by a Ninth Circuit appeals panel last week.

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