The Oscars are coming up, and there’s no better way to celebrate than with a fresh copyright dispute. Guillermo Del Toro is being accused of stealing someone’s story for his movie The Shape of Water….and surprisingly its not the people behind The Creature from the Black Lagoon. 

The Shape of Water has grossed over $54 million in the box office to date. For those unfamiliar with the plot of The Shape of Water, the film is set in 1962 cold-war ridden Baltimore and follows the story of a mute woman working as a custodian in a top-secret government laboratory. Therein, she forms a bond and (naturally) falls in love with an anthropomorphic fish man who has been captured and detained in the laboratory for purposes of studying him.

While The Shape of Water hasn’t necessarily been a box office mega hit, there was nothing stopping David Zindel, a trustee of the Zindel trusts, from alleging that The Shape of Water was a copy of a story written by Pulitzer Prize-winning author Paul Zindel, which was embodied in the 1969 play Let Me Hear You Whisper and adapted into an… interesting made-for-television film that same year. The film also aired on A&E in 1990, according to the complaint, and has been published in various textbooks and compilations of plays. This isn’t the first time The Shape of Water has been accused of copying another film.

Let Me Hear You Whisper is the story of a woman named Helen who works as a custodian at a military laboratory facility that performs scientific experiments on animals in the 1960’s. She ends up fostering a relationship with a dolphin, which chooses to communicate only with Helen and no one else. Helen finds out that the dolphin is slated to have its brain dissected following its failure to learn how to talk, as was planned by the scientists. Much like the protagonist in The Shape of Water, Helen hatches a plan to free the dolphin.

In the complaint, Zindel argues that “filmgoers familiar with Zindel’s Play have roundly recognized [The Shape of Water] as copying the Play, and have publicly criticized its creators for not crediting Zindel’s work.” YouTube users have also mentioned the similarities.

Others, however, don’t agree.

Interestingly, the complaint notes that producer Daniel Kruas is “on record as an admirer of Zindel’s work and came up with the ‘idea’ for [The Shape of Water] the very year the A&E production of Zindel’s Play first aired on national television.”

The complaint goes on to, at length, cite various interviews and articles about Kraus’s reported inspiration for the story behind The Shape of Water. For example, the complaint cites this io9 article, where it is claimed that Kraus was 15 when he came up with the idea of “a story about a creature locked in a lab and a janitor that tries to break it out.”  Zindel then does the math, alleging that “Kraus was born in 1975, and, accordingly was fifteen years old in 1990 when the A&E Production of [Let Me Hear You Whisper] first aired.”

Essentially, Zindel is claiming that The Shape of Water is a derivative work, meaning that FOX, Guillermo Del Toro, Kraus and other related parties involved in the production were allegedly obligated to obtain a license for the story from Zindel before producing the film.

While copyright law gives the owner of a work to create and distribute derivative works (which is a new piece of work that incorporates certain aspects of a preexisting work), copyright law does not protect ideas, it protects expression. I think that this is the biggest problem with Zindel’s complaint – he’s desperate to protect the idea that he alleges has been stolen when there is no protection for mere ideas.

In Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072 (2006), the Ninth Circuit was asked to evaluate whether HBO’s Six Feet Under was substantially similar to The Funk Parlor, a script pitched to HBO prior to Six Feet Under’s conception. The Funk Parlor, much like Six Feet Under, was about a family’s struggles to run a funeral home after the unexpected death of a father. While there were many similarities on the broadest level, the court found that a dive into an analysis of the “levels of plot, characters, themes, mood, pace, dialogue, or sequence of events” revealed “greater, more significant differences” that did not constitute copyright infringement.

That being said, there are plenty of differences between the two pieces beyond the broad idea of a fish facing captivity and a woman coming to its aid. For example, Helen definitely does not have sex with the dolphin in Let Me Hear You Whisper as the protagonist does in The Shape of Water. In The Shape of Water, the protagonist is mute, while the protagonist in Let Me Hear You Whisper is definitely not. Finally, while The Shape of Water is arguably a sci-fi love story, Let Me Hear You Whisper is a story is more focused on a woman’s journey and her relationship with humanity.

I think that in light of the influence of the Funky Films case, as well as the significant differences between the films themselves, The Shape of Water is relatively in the clear on this one. While I think this might result in a settlement between FOX and the Zindels, we’ll have to wait and see.

Author, Caroline Womack, is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.