Risk Management

Copyright suit against ‘Shape of Water’ producer reinstated

Judy Greenwald

June 23, 2020 Reprints

Coverage Disputes Intellectual Property More + Less -

A U.S. District Court’s dismissal of a copyright infringement case against a Walt Disney Co. unit in connection with the Oscar-winning film “The Shape of Water,” is premature, says a federal appeals court, in reinstating the case.

David Zindel, the son of playwright Paul Zindel, filed suit against Disney unit Fox Searchlight Pictures Inc. alleging copyright infringement of his father’s play, “Let Me Hear You Whisper,” by the film and book “The Shape of Water,” according to Monday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in David Zindel et al. v. Fox Searchlight Pictures et al.

The film about a romance between a deaf woman and a water-dwelling creature won several Oscars in 2017, including for best picture.

“Let Me Hear You Whisper,” by Mr. Zindel, a Pulitzer Prize-winning playwright who died in 2003, was first performed in 1969.

The U.S. District Court in Los Angeles dismissed the complaint on the ground the film and book were “not substantially similar to the play as a matter of law.”

The district court “erred by dismissing the action because at this stage, reasonable minds could differ on whether there is substantial similarity between “Let Me Hear You Whisper” and “The Shape of Water,” said the ruling.

“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 unanimous three-judge appeals court panel said.

“Additional evidence would also illuminate whether any similarities are mere unprotectable literary tropes or scènes à faire,” the ruling said in reversing the lower court and remanding the case for further proceedings.

Attorneys in the case did not respond to requests for comment.