District court finds Fox’s Academy Award-winning film “The Shape of Water” is not substantially similar to plaintiff’s 1969 play “Let Me Hear You Whisper” and dismisses plaintiff’s copyright infringement claims.

Plaintiff David Zindel, whose father wrote the 1969 play “Let Me Hear You Whisper,” sued the creators of the film “The Shape of Water,” winner of the 2018 Academy Award for Best Picture, as well as the publisher of a novelization of that film for direct, contributory and vicarious copyright infringement. Zindel alleged that the works’ stories were substantially similar and in many ways identical. The court disagreed, finding no substantial similarity between the works as a matter of law, and granted defendants’ motion to dismiss.

Zindel’s father, Paul Zindel, a Pulitzer Prize-winning playwright, wrote “Let Me Hear You Whisper” in 1969 and registered the work with the U.S. Copyright Office in 1970. Since its publication, the play has been widely read and performed, adapted into live stage and television productions, and taught in American schools. Zindel filed suit in February 2018, just weeks before the broadcast of the Academy Awards, in which “The Shape of Water” was nominated for (and would go on to win) Best Picture and other high-profile awards, alleging that the film and novel infringed the copyright in the play. Defendants included Guillermo del Toro, who wrote, directed and produced the film; the film’s production company, distributors and financiers; and the publisher of the novel.

Zindel alleged generally that both the play and the film/novel recount the story of a lonely cleaning woman working at a laboratory that performs animal experiments during the height of the Cold War who discovers a confined aquatic creature of advanced intelligence and hatches a plan to sneak the creature out and release it into the ocean. Zindel went on to list 61 points of alleged similarity between the play and the other works. Preliminarily, Zindel argued that the issue of substantial similarity in a copyright infringement action is fact-dependent and inappropriate for the court to decide on a motion to dismiss. The court, however, rejected this argument, pointing to Ninth Circuit precedent that dismissal is proper where it is clear there is no substantial similarity between the works as a matter of law.

In considering defendants’ motion to dismiss, the court applied the Ninth Circuit’s extrinsic test for substantial similarity, which requires that the plaintiff show objective similarities between the plots, themes, dialogue, mood, settings, pace, characters and sequence of events in the two works. The court analyzed each of these elements in the play and the film/novel, ultimately concluding that there was no substantial similarity.

With regard to plot, the court noted that the works shared the basic premise of an employee at a scientific facility deciding to free a creature subjected to scientific experiments, but that this concept was too general to be protected by copyright. Though it acknowledged some minor similarities in the works’ expressive choices, such as the fact that the main character is a janitor and that the escape plan involves the use of a laundry cart, the court found “the similarities generally end there.”

The court determined that any minor similarities in plot were outweighed by significant differences. For example, the main character in the play does not develop a personal attachment to the dolphin she discovers being experimented on in the laboratory; instead, she attempts to save the animal out of a moral disapproval of animal testing. In contrast, the main character in the film and novel develops a bond with the test subject, a humanoid, amphibious creature with magical, godlike powers, and the bond grows into personal affection and eventually love. Additionally, one of the most important and significant differences, according to the court, was that the escape is successful in the film but not in the play, where the dolphin never leaves the laboratory. The court further noted that the settings of the works were markedly different, with the play’s setting limited to a laboratory in New York City, while the film and novel take place in various settings around Baltimore, including the government laboratory facility, multiple characters’ homes, restaurants and a dock jutting into the ocean. As the court found that a laboratory setting flows naturally from the unprotectable premise of an employee at a scientific facility attempting to rescue a test subject, it reasoned that this similarity alone did not make the works substantially similar.

The court next contrasted the themes of the works, determining that major differences weighed against a substantial similarity finding. While the play included an anti-animal-experimentation theme and urged people to speak up against authority, neither were found in the film and novel. The film and novel, on the other hand, explored numerous different themes not found in the play, such as the power of friendship and love, racism, sexual identity and repression, and toxic masculinity. The court likewise found significant disparities in the pacing and mood of the works. It noted that the play begins slowly but ramps up toward the end, proceeding in a mostly straightforward and realistic manner. The film and novel, on the other hand, tell multiple interlocking stories with alternating paces, and tell a more fantastical, dreamlike story, involving a mythical and godlike creature that develops a loving and sexual relationship with a human.

The court also rejected plaintiff’s argument that there was similarity in the works’ characters, which are independently protectable only if they “have displayed consistent, widely identifiable traits.” None of the play’s characters were sketched out beyond basic identifying traits, according to the court, and a comparison of the characters further showed that the works were different. The court additionally found that although plaintiff could identify some common words in the dialogue of the works, they did not indicate a sufficient level of substantial similarity, largely because the commonalities were scattered throughout and often used in different contexts or stemmed from the works’ common and unprotectable premises and settings.

Overall, the court found that plaintiff’s list of 61 alleged points of similarity was not persuasive, especially as they included “many over-generalizations” of the works and mischaracterizations of the elements of each work. The court concluded that the film and novel were not substantially similar to the play, and it therefore granted defendants’ motion to dismiss plaintiff’s claim for direct copyright infringement. It then went on to dismiss plaintiff’s claims for contributory and vicarious infringement, noting that secondary liability cannot exist in the absence of direct infringement. Finally, the court determined that its dismissal of plaintiff’s claims would be with prejudice, barring Zindel from attempting to revive the case through an amended complaint, as no amendment could cure the absence of substantial similarity.