By Cheryl Beise, J.D.
The son of late author Paul Zindel plausibly alleged thatThe Shape of Water was substantially similar to his father’s play, Let Me Hear You Whisper.
The federal district court in Los Angeles erred in dismissing a copyright infringement lawsuit against the writers, producers, directors, and distributors involved with the 2017 award-winning film The Shape of Water, the U.S. Court of Appeals in San Francisco has held, because plaintiff David Zindel, son of late author Paul Zindel, plausibly alleged substantial similarity between the film and his father’s play, Let Me Hear You Whisper. In this case, reasonable minds could differ regarding whether the works were substantial similar and "additional evidence, including expert testimony, would aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities" in the works’ expressive elements (Zindel v. Fox Searchlight Pictures, Inc., June 22, 2020, per curiam).
On February 21, 2018, David Zindel, the son of late author Paul Zindel, filed suit against the writers, producers, directors, and distributors involved with the 2017 award-winning film The Shape of Water and the novel based on the film, asserting claims for direct, contributory, and vicarious copyright infringement. Zindel alleged that The Shape of Water ("the Film" and "the Book") copied the story, elements, characters, and themes from his father’s play, Let Me Hear You Whisper ("the Play"). Zindel’s complaint identified 61 points of similarity between the Play and the Film. The defendants—Fox Searchlight Pictures, Inc., Twentieth Century Fox Film Corporation, TSG Entertainment Finance LLC, Guillermo del Toro, Daniel Kraus, and MacMillan Publishing Group, LLC—moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The district court granted the motion to dismiss, finding that the defendants’ works were not substantially similar to the Play as a matter of law. Zindel appealed.
The Ninth Circuit held that the district court erred in concluding on a motion to dismiss that the parties’ works were not similar. At the pleading stage, Zindel was only required to plausibly allege substantial similarity between the works.
Substantial similarity. Although a copyright owner ultimately must satisfy both the extrinsic and intrinsic tests for proving substantial similarity, only the extrinsic test may be decided on a motion to dismiss, the court noted. Under the extrinsic test, the court looks to specific, articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. The district court in this case examined each of these elements.
Citing a copyright law treatise, the Ninth Circuit cautioned that "[d]ismissal is warranted only if, ‘as a matter of law[,] the similarities between the two works are only in uncopyrightable material or are de minimis.’" 3 William F. Patry, Patry on Copyright § 9:86.50 (2020). "It must be the case that reasonable minds could not differ on the issue of substantial similarity," the court said.
In this case, the Ninth Circuit found that the district court erred by dismissing the action because, at this stage, "reasonable minds could differ on whether there was 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 scenes a faire," the court suggested.
The Ninth Circuit declined to go as far as to say that ruling as a matter of law at the pleading stage is never appropriate, but the court observed that it has long held that summary judgment is "not highly favored" on questions of substantial similarity. "Courts must be just as cautious before dismissing a case for lack of substantial similarity on a motion to dismiss," the appeals court said.
The district court’s order was reversed, and the case was remanded.
This case is No. 18-56087.
Attorneys: Marc Toberoff (Toberoff & Associates, PC) for David Zindel. David Grossman (Loeb & Loeb LLP) for Fox Searchlight Pictures, Inc.
Companies: Fox Searchlight Pictures, Inc.; Twentieth Century Fox Film Corp.; TSG Entertainment Finance LLC; MacMillan Publishing Group, LLC
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