Shape of Water, the winner of Best Picture, Best Director, and other Oscars, captivating audiences around the world, has come under fire for plagiarism. The 2017 film has been accused of borrowing heavily from a 1969 play called Let Me Hear You Whisper. The infringement claims were originally dismissed by the district court based on finding the two works shared merely a “basic premise” and “minor similarities.” Zindel v. Fox Searchlight Pictures, Inc., No. CV 18-1435 PA, 2018 U.S. Dist. LEXIS 123872 (C.D. Cal. July 23, 2018). On appeal, however, the Ninth Circuit reversed noting the district court judge was too quick to dismiss the case – reasonable minds could differ on whether the two works are substantially similar. Zindel v. Fox Searchlight Pictures, Inc., No. 18-56087, 2020 U.S. App. LEXIS 19444 (9th Cir. June 22, 2020).

Shape of Water is based around a female janitor who falls in love with an aquatic creature kept in a military scientific lab for testing. After learning the creature is slated to be killed, she helps it escape by transporting it out of the lab using a laundry cart. In Let Me Hear You Whisper, a female janitor at a private dolphin research center develops a connection with an intelligent dolphin and teaches it to speak. To prevent doctors from performing painful experiments on the dolphin, the female janitor helps it escape using a laundry cart. The district judge found that “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,” and while “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 … the similarities generally end there.” The judge then went on to delineate the many dissimilarities between the two works, primarily focusing on the differing themes between the film and the play.

Some would argue the Ninth Circuit’s revival of the infringement suit stifles trial judges’ ability to compare literary works at the earliest stages of litigation and, without the help of expert testimony, determine whether an allegedly infringing work is sufficiently similar to the original work to allow the case to go forward. They argue experts can muddy the waters by finding similarities in dissimilar works and that by allowing parties to introduce experts on thin ice claims, trial courts will have a difficult time weeding out bad copyright lawsuits. Nevertheless, where striking similarities in creative expression exist, trial judges should not supplant the determination of a jury for their own judgment of whether the similarities rise to the level of infringement. Accordingly, the Ninth Circuit found the similarity of character (female janitor), interacting with an aquatic creature, and helping it escape using a laundry cart, could be viewed by reasonable minds as substantially similar plots. What the district court judge characterized as “minor similarities” could reasonably be interpreted as major. When more than de minimis similarities exist, expert testimonies would “aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities.”

As such, Plaintiff will have the opportunity to develop expert testimony in support of its infringement theory. If the case does not settle, a summary judgment showdown is likely.