In February, we made a post around Oscars time about a suit claiming that The Shape of Water was stolen from an original play-turned-film from the 1960’s titled Let Me Hear You Whisper.

To sum up the original complaint filed earlier this year, trustee David Zindel alleged that The Shape of Water had copied author Paul Zindel’s Let Me Hear You Whisper, which is the story of a woman who works as a custodian at a military laboratory facility that performed scientific experiments on animals, including a specific dolphin that can communicate. In the film, she ends up fostering a relationship with a dolphin. When Helen finds out that the dolphin is slated to have its brain dissected following its failure to learn how to talk, Helen hatches a plan to free the dolphin much like the protagonist in The Shape of Water in her efforts to save her fishy friend.

via HollywoodNerd

Zindel’s complaint against The Shape of Water’s Guillermo Del Toro and others cited a sea of evidence that the writers of The Shape of Water had purposely taken inspiration and ideas from Let Me Hear You Whisper, including a timeline of producer David Kraus’s life that pinned him to having possibly seen Let Me Hear You Whisper on television around the age of 15.

At the beginning of the suit, there was a lot of talk that this claim was brought to distract from The Shape of Water’s Oscar nominations. Del Toro vehemently denied the claims, making sure everyone knew that he had never heard of Let Me Hear You Whisper before the suit was brought. Fortunately for Del Toro, The Shape of Water brought home several awards including best picture, directing, and more regardless of Zindel’s claims.

On May 7, 2018, Del Toro, Kraus, Fox, and the other defendants in the case at hand filed a motion to dismiss the claims brought by Zindel. In the motion, the defendants stressed that Zindel’s claim for relief based on copyright infringement should fail because there was no substantial similarity of protected expression between Let Me Hear You Whisper and The Shape of Water.

While the defendants conceded that the female protagonists were alike in their job title, they argued that there was little other evidence available to prove that The Shape of Water contained substantially similar protected expression that entitled the Zindel trust to relief for copyright infringement. Specifically, the defendants broke down both the original book, The Shape of Water, as well as the film adaption (which is a derivative work thereof.)

The defendants pointed out various differences between the two films in a motion consisting of over thirty-pages of specific references to discrepancies between The Shape of Water and Let Me Hear You Whisper. In short, the defendants deemed the plot of each film to be distinct from one another because the characters and their situations are so dramatically dissimilar. It also noted that the settings of the two works are entirely different – throughout The Shape of Water, the characters travel to a variety of locations while Let Me Hear You Whisper only takes place in a laboratory (likely a result of its previous status as a stage play).

On July 23, the U.S. District Court for the Central District of California ruled on the motion. After diving into the plot and sorting out the creative, protectable elements of each film, the court ended up deciding that there was, very obviously, no substantial similarity between Let Me Hear You Whisper and The Shape of Water.

In determining that there were no creative elements of the characters copied from Let Me Hear You Whisper in The Shape of Water, the judge (quite harshly) noted that:

“Helen [the main protagonist of Let Me Hear You Whisper] lacks any distinctive personality transcending the story that she inhabits, instead serving as the viewpoint for the Play’s events and the mouthpiece for its messages. Thus, none of the Play’s characters are independently copyrightable. . . . Helen is a relatively undeveloped character who speaks tersely and is presented as being simple. She does not have any other people in her life . . . and she does not create any personal bond with any other character in the Play—including the dolphin. Nor does Helen have any personal interests.”

via HollywoodNerd

The fact that the defendants won on this case is a good win for copyright law and the separation of protectable a non-protectable elements in copyrighted works. In light of how detailed and strong the motion to dismiss was (and how ridiculous the original case was), it’s no surprise that FOX, Del Toro, and the other defendants here won this case. Not only have the Zindels been cast out to sea on this one, but they’ve been ordered to pay the legal costs incurred by the defendants as well.

Author, Caroline Womack, is a rising 3L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.