PASADENA, Calif. (CN) – As a Ninth Circuit panel weighed whether to resurrect a copyright infringement lawsuit against the filmmakers behind the Oscar-winning “The Shape of Water,” one judge called attention Monday to what she described as a troubling trend of cases involving literary works being prematurely dismissed by lower courts.
David Zindel, the son of Pulitzer Prize-winning writer Paul Zindel, claims “The Shape of Water” poached essential elements of his father’s 1969 play “Let Me Hear You Whisper.” The film, co-written and directed by Guillermo Del Toro, won four Academy awards in 2018 and was nominated for best original screenplay.
U.S. District Judge Percy Anderson dismissed Zindel’s lawsuit last year, finding that the play and film are substantially different despite sharing some “superficial elements and some basic plot points.”
The film centers around a female janitor named Eliza who falls in love with an aquatic deity kept in a scientific lab used by the military. When she learns the creature will be killed, she helps it escape into the ocean by smuggling it out of the lab in a rolling laundry cart.
In Zindel’s play, a female janitor named Helen connects with an intelligent dolphin imprisoned in a medical lab, where it is experimented on by doctors. She too tries to help it escape via the laundry cart gambit, though unsuccessfully.
U.S. Circuit Judge Kim Wardlaw said she struggled with the similarities between the two works, and thought it rather hubristic that a judge would toss the case at an early stage without oral argument when the standard to overcome a motion to dismiss is to simply state a plausible claim.
"That aspect of this case really troubles me,” Wardlaw said Monday. “I don’t want to encourage district courts to do this.”
She said while some copyright infringement cases “are so frivolous that they deserve to be dismissed,” others are far less black and white.
“I just see district courts disposing of cases on the easiest grounds available,” Wardlaw said, adding: “Another thing I find troublesome is that district court judges aren’t holding oral argument, as in this case. But we’re holding oral argument and hearing things that never got before the district court.”
Representing Zindel, attorney Alex Kozinski said the case should go back to the lower court but to a different judge who hasn’t already made up his mind.
“At the very least a plaintiff as a matter of due process should be allowed to put on evidence,” he said. “And also due process for the defendants – there have been cast aspersions that this script was in fact plagiarized.”
Kozinski returned to the Ninth Circuit courtroom as an advocate after sitting on the bench itself for three decades. He stepped down in 2017 under the weight of public complaints from female law clerks.
Kozinski said his client only sued after he saw the “avalanche” of online comments drawing comparisons between the two works, and that he thought the filmmaker would want the chance to clear up the accusation of plagiarism.
“I think they would relish the thought of going before a jury, telling their stories, and hoping to be vindicated and basically clear their Oscar of this taint,” Kozinski said.
He added: “We’re not claiming we’re entitled to the story. The story has been told many times of a human being making friends with an otherworldly creature, some nonhuman entity, and helping that entity escape a dreadful fate. But what is protected is the way in which Paul Zindel chose to tell that story, the artistic and literary choices he made.”
U.S. Circuit Judge Kenneth Lee seemed to think the only similar elements were a female janitor attempting to save an animal by smuggling it in a hamper. He said it also sounded run-of-the-mill that the animal would form a special bond with the person in the humblest position.
“Isn’t it a typical Hollywood cliché, the animal that finds common ground with the lowest – someone who isn’t respected by others or is mistreated by others – isn’t that a Hollywood trope?” he asked.
Kozinski answered, “In Hollywood, as in life, there is nothing new under the sun. By that standard, everything you find in every movie will have been a stock character for something else.”
However, “The question is whether or not what they’ve done here is taken the essence – the heart – of Paul Zindel’s play,” he said.
Jonathan Zavin, who represents the filmmakers, said Lee had basically made his claim for him.
“The only thing these works have in common is they are about a cleaning lady who bonds with an animal who she attempts to have escape,” he said.
Wardlaw asked Zavin why the case wouldn’t benefit from oral argument, or at least having some experts weigh in on the similarities and differences.
“We’re talking about literary works here, she said. “I think it’s hubris for a district court judge to think they have enough knowledge and basis in film and theory – things people go to school for – that they can decide this on just a dismissal stage; except I think in rare cases where it’s just so frivolous.”
Zavin, who practices in New York, said it wouldn’t change the result.
“We almost never have oral argument in our district courts, the practice is just different,” he said. “I don’t think it materially changes the result. District court judges are perfectly capable of doing this.”
He said a limiting rule on motions to dismiss would doom the court – and litigants – to lengthy and expensive legal battles.
“But we might have more confidence in the result,” Wardlaw said.
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