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Ninth Circuit looks at copyright dispute over "The Shape of Water"

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Anyone who saw the Best Picture winner "The Shape of Water" is likely to agree that it is a haunting film that uses elaborately detailed, blue sets with unexpected, random shots of water in a variety of circumstances throughout to create a mesmerizing visual story. While it seems like a unique movie, the son of Pulitzer Prize-winning playwright Paul Zindel has sued Fox Searchlight Pictures, Inc., and others linked with the film alleging copyright infringement of his father's 1969 play "Let Me Hear You Whisper."

Zindel's story tells of a janitor at a private dolphin research center who teaches a captive dolphin to speak, while "The Shape of Water" tells the tale of a mute janitor at a government research facility who falls in love with an aquatic, humanoid creature held captive there.

Substantial similarity

The U.S. District Court in the Central District of California dismissed Zindel's lawsuit in an unpublished opinion that said the film (and a related book) are not substantially similar to Zindel's play as a matter of law and that the similarities are "minor." The judge decided the case without oral argument.

In considering the motion to dismiss, the court looked at the "extrinsic test" of substantial similarity - analyzing the protectible "concrete elements based on objective criteria" - namely a comparison of "plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works."

The judge analyzed all these elements in comparison to conclude that the two works are not substantially similar, despite some jarring similarities. For example, in both works, the captured creature was spirited away by the respective janitor in a laundry cart.

Case dismissal appealed

The plaintiff appealed to the U.S. Court of Appeals for the 9th Circuit, which heard the case on Dec. 9. The defendants on appeal argued that the trial court was appropriate to decide the case on a motion to dismiss, while the plaintiff asserted that he deserves to survive dismissal and have the opportunity to present evidence of substantial similarity to a jury, including the testimony of expert witnesses.

(The unpublished U.S. District Court opinion in Zindel v. Fox Searchlight Pictures, Inc., is available on Westlaw at 2018 WL 3601842.)

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