Judge Improperly Axed Action Against Makers of ‘Shape of Water’’

Wednesday, June 24, 2020

Page 1

Ninth Circuit:

Judge Improperly Axed Action Against Makers of ‘Shape of Water’’

Whether the Academy Award Winning Film Infringed Copyright on Play by Paul Zindel Was not a Matter For District Court Judge Anderson to Decide on Motion for Dismissal, Three-Judge Panel Declares

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has ordered reinstatement of an action for plagiarism brought by two family trusts which own rights to the works of the late playwright Paul Zindel against the makers of the 2018 Academy Award winning best picture, “The Shape of Water,”

Scuttling an action at the pleading stage is disfavored in copyright infringements actions, a three-judge panel said in a memorandum opinion filed Monday, declaring that the case does not present one of the rare instances where reasonable minds could not differ as to whether two works are substantially similar.

The opinion reverses the dismissal of the action, with prejudice, by District Court Judge Percy Anderson of the Central District of California.

Zindel, who died in 2003, won the 1971 Pulitzer Prize for his play, “The Effect of Gamma Rays on Man-in-the-Moon Marigolds.” It was his 1969 play, “Let Me Hear You Whisper,” which, according to complaint, was pirated by the defendants.

The action was brought by the author’s son, David Zindel, as trustee of the two trusts.

“Let Me Hear You Whisper” has been widely performed and was adapted for television twice, airing on public television on May 22,1969, and A&E on Jan. 4, 1990. “The Shape of Water,” released in theaters on Dec. 1, 2017, won three Academy Awards in addition to the one for best picture, and grossed $195 million.

Above is a screenshot from the movie, “The Shape of Water.” A cleaning woman communicates with an amphibian man in a water tank at a laboratory. The Ninth U.S. Circuit Court of Appeals held Monday that District Court Judge Percy Anderson of the Central District of California erred in dismissing a complaint which asserts that the film plagiarizes the play, “Let Me Hear You Whisper.”

Seen above is a screenshot from a 1990 A&E production of “Let Me Hear You Whisper.” A cleaning woman communicates with a dolphin in a water tank at a laboratory.

Plots Compared

David Zindel’s complaint, filed Feb. 21, 2018, provides this summary of the play’s plot:

“The Play centers on a lonely janitorial cleaning woman. Helen, who works the night shift at a secret scientific laboratory facility that perforins animal experiments for sinister, military purposes in the 1960s (during the height of the Cold War). Helen works with a talkative, humorous cleaning woman who complains about her marriage to her former husband, whereas Helen is quiet, introverted and keeps to herself. Inside one of the laboratories, she discovers an aquatic creature of advanced intelligence (a dolphin) confined to a glass tank, and begins a loving relationship with the creature, discovering that it can indeed communicate—but chooses to do so only with her. When she learns that authorities at the laboratory plan to kill the creature via “vivisection.” ostensibly in the name of scientific progress. Helen hatches a plan to sneak the creatine out of the lab in a laundry cart, and release him at a dock on an urban river that feeds into the ocean, where he will finally be free.”

The pleading offers this synopsis of the movie:

“The Picture centers on a lonely janitorial cleaning woman, Elisa, who works at a laboratory facility that performs marine experiments for sinister, military purposes in the 1960s (during the height of the Cold War). Elisa works with a talkative, humorous cleaning woman who complains about her marriage to her husband, whereas Elisa is mute and introverted. Inside one of the laboratories, Elisa discovers an aquatic creature of advanced intelligence (an amphibian man) confined to a glass tank, and begins a loving relationship with the creature, discovering that it can indeed communicate—but chooses to do so only with her. When she discovers that authorities at the laboratory plan to kill the creatine via ‘Vivisection,’ ostensibly in the name of scientific progress, Elisa hatches a plan to sneak the creature out of the lab in a laundry cart and release him at a dock on an urban canal that feeds into the ocean, where he will finally be free.”

Defendants’ Comparisons

In seeking dismissal, five of the defendants—production company/distributor Fox Searchlight Pictures, Inc., co-financer/distributor Twentieth Century Fox Film Corporation, co-financer TSG Entertainment Finance LLC, author/producer/director Guillermo del Toro, and associate producer Daniel Kraus—set forth:

“The Play is a short, straightforward, essentially three-person play about the evils of animal experimentation, in which a reserved cleaning woman in a small laboratory convinces a dolphin to talk, thus preventing it from being killed by scientists, then quits her job and leaves the dolphin behind. The Film, by contrast, is a sweeping, and decidedly adult, meld of genres, about a romantic, and sexual, relationship between Elisa, a mute but vibrant female janitor, and a humanoid, amphibian creature with godlike, magical powers. Elisa is ultimately revealed to be not-quite-human after all, but rather her own form of aquatic being; in the end Elisa and the creature escape together and live happily ever after, under the water. The Film contains numerous other major characters, subplots and themes that bear no resemblance to the Play….”

The defendants insisted that the two works are “completely dissimilar.”

Anderson’s View

Anderson agreed with the defendants. In his July 23, 2018 order dismissing the complaint, he wrote:

“Although the Play and the 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 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. Other similarities stem from those basic and unprotectable elements, such as those responsible for the testing not seeing their work as harmful or wrong. There are some minor similarities in the two works’ expressive choices, such as the fact that the main character is a janitorial worker, that the test subject is of interest for military purposes, and that the escape plan involves the use of a laundry cart. However, the similarities generally end there.”

He said leave to amend would be pointless.

Ninth Circuit’s Opinion

The Ninth Circuit’s opinion—by Circuit Judges Kim Wardlaw and Kenneth Kiyul Lee, joined by District Court Judge Matthew F. Kennelly of the Northern District of Illinois, sitting by designation—says:

“Here, 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. 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….Additional evidence would also illuminate whether any similarities are mere unprotectable literary tropes or scenès a fàire.”

(A trope is the use of figurative language for artistic effect; “scenès a fàire” (translated from French as “scene that must be done”) refers to a scene that is obligatory for the genre.)

The opinion does not respond to the plaintiff’s request in its papers that the case be assigned, on remand, to some other judge.

Oral Argument

That request was reiterated at oral argument last Dec. 9 in Pasadena by Alex Kozinski, a judge of the Ninth Circuit from 1985 to 2017, and chief judge from chief judge from 2007-14, who resigned amidst allegations by former female court employees of sexual harassment. In closing his rebuttal, he urged:

“I would hope that if this court does send it back, it would at least consider sending it back to a different district judge. I cast no aspersions on the fairness and impartiality of my classmate, Judge Anderson—UCLA grad—but he made up his mind.”

In his initial argument, Kozinski complained of Anderson’s procedure, saying:

“[T]he judge decides the case—doesn’t hear from experts, doesn’t want to hear from jurors, doesn’t even want to hear from the lawyers. It’s simply a decision in chambers about something that is sensitive and delicate….”

Alex Kozinski argues before a panel of the Ninth U.S. Circuit Court of Appeals, of which he had served as chief judge in 2007-14.

Copycat Verbiage

He told the members of the panel:

“Dismissal of the complaint for lack of substantial similarity before any discovery is virtually unheard of. Indeed, this court has never affirmed the dismissal of a case alleging infringement of a literary work without discovery, in published opinion.”

Kozinski then advised:

“That’s not me speaking. That’s from a concurrence in a decision by this court last year [in 2018] reversing the very same district judge who dismissed the case here.”

In that case, Astor-White v. Strong, Anderson was affirmed in dismissing an action (the federal analogue of sustaining a demurrer in a California state case) but was reversed in having done so with prejudice (akin to sustaining a demurrer without leave to amend). The concurring opinion in that case was by Wardlaw, who presided at the Dec. 9 argument in Zindel’s appeal.

She said in her opinion there that “dismissal of a complaint for lack of substantial similarity before any discovery is virtually unheard of” and that “our court has never affirmed the dismissal of a case alleging infringement of a literary work without discovery in a published opinion.”

There was also a dissent in the case.

Astor-White was a memorandum (unpublished) opinion, citable under federal standards for its persuasive value.

Wardlaw Comments

At the oral argument, Wardlaw commented:

“I think it’s kind of humorous for a District Court judge to think they [sic] have enough knowledge and basics in film and theory, that people go to school for—USC, UCLA—to learn all about, that they [sic] just decide this.”

Jonathan Zavin of Loeb & Loeb LLP argued for the defendants. He maintained that “the only thing these works have in common is a cleaning lady bonded with an animal” she helped to escape.

The case is Zindel v. Fox Searchlight Pictures, Inc., 18-56087.