The copyright dispute over del Toro’s ‘The Shape of Water’

Reading time: 8-10 minutes.

Introduction

In 2018, David Zindel, son of acclaimed playwright Paul Zindel, had filed a lawsuit against Guillermo del Toro’s ‘The Shape of Water’, winner of the 2018 Academy Award for Best Picture, on grounds of copyright infringement. Back in 1969, Paul Zindel had penned down a play by the name of ‘Let me hear you whisper’. In 1970, he registered the work with the United States Copyright Office. Ever since, according to the plaintiff, the work had widely been read and performed, adapted into live stage and television productions, and taught in American schools. The plaintiff alleged that del Toro’s film contained strikingly similar elements to those in Paul’s play, and therefore the creators of the film must be held liable for infringing the plaintiff’s copyright in the play. The district court set aside the plaintiff’s arguments, stating that firstly, most of the content pointed out by the plaintiffs was too general to be protected, and secondly, the 2 works were not substantially similar. On appeal, however, the Ninth circuit court reversed the judgement, stating that for substantial similarity to be adjudged, expert testimony was indispensable.

The claim

The plaintiffs did not merely sue the director, but also the film’s production company, distributors and financiers, and the publisher of the novel for infringing the copyright vested in the play. David Zindel claimed that both works involved a female janitor working for a scientific laboratory, an aquatic animal with which she forges a close bond, and a sequence wherein she helps it escape using a laundry cart. The plaintiffs went on to enlist as many as 61 points of similarities between the 2 works.

In turn, del Toro completely denied these allegations and said that he had neither seen nor read Zindel’s play. According to the originality doctrine, for the copyright to vest in a work, the work must essentially be an independent creation of the mind. Which means, it must not have been copied from prior work. Therefore, as del Toro claims, if the accused could prove that he had not witnessed the prior work in any way at the time of the creation of his work, he shall not be deemed guilty of copyright infringement, even if the 2 works turn out to be coincidentally similar.

Fox’s attorneys denied the film being substantially similar to the play, for both works explore different themes. The play, which involves the janitor convincing the dolphin to talk in order to prevent its testing by scientists, attempts at promoting hostility towards animal experimentation. The film, on the other hand, was “a decidedly adult meld of genres”[1], involving a female janitor forging a romantic and sexual bond with a humanoid amphibian.

Spinner v. American Broadcasting Companies, Inc.

In 1977, the plaintiff, in this case, had penned down a pilot for ABC Entertainment entitled ‘L.O.S.T.’ It was centred around a group of people stranded on a remote island, their adventures and their survival. However, the pilot never materialised. In 2003, the then chairman of ABC Entertainment came up with the concept for ‘Lost’, a television series now hailed by many as one of the greatest shows of all time. In July 2009, Spinner filed a suit against ABC claiming that it breached its contract, and thereby violated Spinner’s copyright in the pilot. According to Spinner, an implied contract had come into existence when ABC had obtained his script for the pilot. The show may have not materialised back then, but ABC still had had access to his script. On the basis of these claims, he demanded remuneration. ABC responded by saying that it had not had any access to Spinner’s script, and therefore, the similarities between the 2 works are merely coincidental. The appellate court agreed with ABC’s contentions and held that the defendants had furnished substantial evidence to prove that they did not have any access to Spinner’s script. Therefore, the defendants were not held guilty of copyright infringement.

The district court’s observations

The district court reached its conclusion relying primarily on 2 major observations-

  • The court agreed with the defendants on the point that in an alleged case of copyright infringement, a motion to dismiss could be passed against the defendants because when the 2 works have judicially been viewed by the court, and have not been found to be substantially similar, the motion to dismiss is deemed to be proper. Speaking on the motion to dismiss, the court referred to the ‘substantial similarity test’ in order to determine the similarity index. The substantial similarity test is a popular test which involves the court conducting an objective analysis of similarities between the competing works’ plot, themes, dialogue, settings, pacing, characters, and sequence of events after filtering out non-protectable similarities.[2] The test usually takes place through 2 levels: the extent of verbatim copying, and that of modified copying. Verbatim copying involves a clear-cut reproduction of the non-protectable content, while modified copying involves modifications made to the original work. In this case, the court, after conducting a detailed analysis of the 2 works, reached the conclusion that the similarity between the 2 works wasn’t enough to satisfy the substantial similarity test.
  • Both works focus on different thematic concerns. While the play primarily tries to send messages to the audiences regarding abusive animal experiments and the horrors of war, the film delves into numerous other concepts such as the power of friendship and love; the power of music and cinema as a form of expression and connection; unexpected soulmates; society’s intolerance towards outsiders; racism; sexual identity and repression; bias against perceived outsiders and the banding of misfits; and toxic masculinity.[3]
  • The court held that proving substantial similarity as a matter of law is quintessential in cases of copyright infringement. It retraced the Ninth Circuit’s decision in Rentmeester v. Nike[4], stating that no matter what the plaintiff alleges, the level of similarity to be proven in order to satisfy the substantial similarity test remains constant. In this case, although the court did point out certain instances of sameness, such as a female janitor working in a laboratory, an aquatic creature upon which scientific experiments are conducted, a laundry cart, etc., they were not substantial enough for an infringement case to be instituted.
  • The court opined that even though there were slight elements of similarity between the 2 works, they were overridden by the significant differences. For instance, the play does not feature the janitor and the dolphin forming a close connection. Rather, the janitor helps the dolphin escape on account of her hostility towards experiments on animals. On the other hand, the film features the janitor and the aquatic creature forge a strong emotional bond, arising out of personal affection and ultimately culminating into love. The court also noted that in the play, the dolphin never makes it out of the laboratory, while in the film, its attempt is successful.
  • According to the court, most of the plaintiff’s contentions were based on elements that were way too general to be protected. For instance, the premise of an employee working at a laboratory who helps an aquatic creature to escape into the ocean, was too basic for copyright cover. Ideas by themselves are not eligible for protection. Rather, novel expressions of ideas are. The case of International News Service v. Associated Press[5] involves 2 US news agencies involved in reporting news on the First World War. Consequently, one of the agencies began accessing the other’s reports through bulletins on notice boards and began selling them as their own. The court rejected the plaintiff’s claim, stating that since the concerned theme was merely an idea, no copyright infringement had occurred.

Ninth Circuit’s revival

On June 22, 2020, almost a couple and a half years after the district court had turned down the plaintiff’s claims, a 3-judge Ninth Circuit panel overturned the judgement and sent it back to the district court. According to the Ninth Circuit, in this case, the district court had given the judgement in haste, and the case required more detailed analysis. It opined that “reasonable minds could differ on whether the two works are substantially similar”.[6] For instance, according to the Ninth Circuit, the premises of the 2 works centred around the interaction of a female janitor with an aquatic creature, and the escape of the aquatic creature through a laundry cart could well be considered substantially similar by a reasonable person. Therefore, in order to resolve such contradictions and help aid objective literary analysis, expert testimony was needed. It was expert testimony only which could help determine the extent to which del Toro’s film infringed the copyright in the plaintiff’s play.

Some would argue that incorporating expert evidence in cases of copyright infringement would stifle the trial courts’ ability to determine the extent of the similarity. However, it is indispensable that trial judges should not supplant the determination of a jury for their own judgment of whether the similarities rise to the level of infringement.

Other cases where expert testimony was encouraged

Alfred v. The Walt Disney Company

In this case[7], the plaintiffs filed a suit against Walt Disney Co., alleging that the defendants had breached the copyright vested in the plaintiffs’ script. On analyzing the 2 works, the district court did come across similarities. For instance, both works commence with a sequence that takes place a decade before the main story, involve treasure stories taking place on islands and in jewel-filled caves, include past stories of betrayal by the former first mate, contain fearful moments driven by skeleton crews, focus on the redemption of a young, rogue pirate, and share similarities in dialogue and tone.[8] However, the court regarded most of these similarities to arise out of unprotected pirate-movie ideas. In the opinion of the court, such content was way too basic to be protected, and therefore dismissed the plaintiffs’ claim.

The Ninth Circuit reversed this judgement and held that the question of whether a concept is too basic to be protected or not can be answered merely by the jury. Reasonable minds could differ on the extent to which the 2 works are similar, and therefore, expert testimony is indispensable.

The Stranger Things controversy

On July 15, 2020, Irish Rover Entertainment (Irish Rover) brought a lawsuit against Netflix, claiming that the Duffer Brothers (executive producers of Netflix’s ‘Stranger Things’) had lifted almost everything from the screenplay of Jeffrey Kennedy’s “Totem”. There certainly did exist a few similarities between Totem and Stranger Things. For instance, both works involve a group of teenagers taking down evil organisations, supernatural beings from alternate dimensions, a young girl possessing psychic abilities, etc. The Duffers denied having known about the plaintiff’s screenplay at the time of creation of Stranger Things.

The District Court agreed with the plaintiff’s contentions, and relying on the Ninth Circuit’s unpublished decision in the Alfred case, held that expert testimony was indispensable in determining the extent to which the two works were similar. Accordingly, the motion to dismiss was denied.

Author: Vedant Saxena, RGNUL, Punjab


[1] Zindel v. Fox Searchlight Pictures, Inc., et al., Loeb & Loeb LLP, available at: https://www.loeb.com/en/insights/publications/2018/08/zindel-v-fox-searchlight-pictures-inc-et-al#:~:text=Fox%20Searchlight%20Pictures%2C%20Inc.%2C%20et%20al.,-USDC%2C%20C.D.%20California&text=Zindel%20alleged%20that%20the%20works,granted%20defendants’%20motion%20to%20dismiss (last visited on Feb. 16, 2021).

[2] “Stranger Things”: Copyright Challenge To Popular Series Survives Motion To Dismiss, JD Supra, available at: https://www.jdsupra.com/legalnews/stranger-things-copyright-challenge-to-1330064/ (last visited on Feb 16, 2021).

[3] Judge dismisses ‘Shape of Water’ copyright suit, Yahoo!, available at: https://www.yahoo.com/entertainment/judge-dismisses-shape-water-copyright-200019056.html (last visited on Feb. 16, 2021).

[4] Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018).

[5] International News Service v. Associated Press, 248 U.S. 215 (1918).

[6] Ninth Circuit Revives ‘Shape of Water’ Copyright Suit, Courthouse News Service, available at: https://www.courthousenews.com/ninth-circuit-revives-shape-of-water-copyright-suit/ (last visited on Feb. 16, 2021).

[7] Alfred v. Walt Disney Co., 388 F. Supp. 3d 1174.

[8] Lawsuit claiming Disney stole idea for ‘Pirates of the Carribean’ movie revived by Ninth Circuit, Yahoo! News, available at: Lawsuit claiming Disney stole idea for ‘Pirates of the Carribean’ movie revived by Ninth Circuit (yahoo.com) (last visited on Feb 16, 2021).

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