13 December 2019CopyrightRory O'Neill

Ninth Circuit asked to weigh in on ‘The Shape of Water’ copyright suit

The estate of the late US playwright Paul Zindel has urged the Ninth Circuit to revive a copyright infringement suit against the producers of 2017 Academy Award winner “The Shape of Water”.

Zindel’s son David, the trustee of two organisations which own the late playwright’s IP, sued Fox Searchlight Pictures last year.

According to Zindel, “The Shape of Water” lifted the premise of his father’s 1969 play “Let Me Hear You Whisper”.

The US District Court for the Central District of California previously dismissed the case, with judge Percy Anderson finding that the similarities between the works were too minor to support a finding of infringement.

The district court accepted that both works shared the premise of an employee at a scientific facility looking to free a non-human creature being subjected to cruel experiments.

According to Anderson, however, this concept is “too general” to enjoy copyright protection.

“ The same is true for the detail that the employee is moved by the subject’s impending death and the more basic idea of a person forming a connection with a non-human or animal,” the judge wrote.

Zindel is looking to have Anderson’s decision overturned by the Ninth Circuit. The playwright’s family was represented in court earlier this week by Alex Kozinski, a former chief judge of the Ninth Circuit.

The case marks Kozinski’s first return to the Ninth Circuit after he resigned as a judge in 2017 amid sexual harassment allegations.

Kozinski apologised in 2017 after The Washington Post reported that 15 women, including colleagues and court clerks, accused him of unwanted sexual comments and physical contact.

In a statement, Kozinski said: “it grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent.”

“For this I sincerely apologise,” he said.

Oral arguments in the case were held this week, and saw a circuit judge express concern at district courts dismissing infringement suits too easily.

“I just see district courts disposing of cases on the easiest grounds available,” Ninth Circuit judge Kim Wardlaw said.

Wardlaw added: “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.”

Kozinski requested on behalf of his client that the case be sent back to the district court before a new judge in the interests of “due process”.

“The Shape of Water” enjoyed great success at the box office and the 2018 Academy Awards, picking up four awards including Best Picture and Best Director for Mexican filmmaker Guillermo del Toro.

Producers of the film have maintained that the alleged similarities with Zindel’s play are too generic to support a claim of copyright infringement.

The studio was backed in the district court by Macmillan Publishing, which submitted a list of works demonstrating the commonality of the alleged similarities between the two works.

According to court filings, Macmillan intended to publish a novelisation of “The Shape of Water” penned by del Toro and author Daniel Kraus.

Zindel also named the book as infringing his father’s copyright.

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