Defining the shape of copyright law: on the infringement allegations against ‘The Shape of Water’

On 4 March
2018, the yearly pinnacle of the cinematographic world is set to take place at
the Dolby Theatre in Hollywood, LA. In the course of the 90th Academy Awards ceremony, honouring the best films of
2017, a grand total of 24 Oscars will be presented. A leading 13 nominations
were won by ‘The Shape of Water’, a romantic fantasy drama film
directed by Guillermo del Toro. However, the film’s success is not hailed by
all. Indeed, both the film’s director and Fox Searchlight were recently sued for copyright infringement before the
District Court of California. Allegedly, ‘The Shape of Water’ infringes the
copyright of the late author and playwright Paul Zindel. This raises questions
on both the copyrightability of an idea and the threshold for copyright
infringement. Indeed, could one of the most critically acclaimed films of 2017
be a work of plagiarism?

‘The Shape of Water’ vs. ‘Let Me
Hear You Whisper’

‘The Shape of Water’ follows a mute female custodian,
employed at a high-security government laboratory based in Baltimore in 1962.
Together with a co-worker, she discovers a secret experiment conducted on a
humanoid-amphibian creature when she is asked to clean up following an
incident. Researchers wish to find out to what extent the creature’s
respiratory system can help the human race. However, custodian and creature
fall in love and a rescue attempt ensues. Without wishing to spoil the film’s
plot entirely, we add that the rescue mission is carried out with the help of a
laundry cart.

The 1969 play ‘Let Me Hear You Whisper’ by
Pulitzer-winning author Paul Zindel also has a female protagonist, who was
hired as a cleaning lady at a laboratory where experiments on mammals are
conducted. Researchers plan to dissect the brain of a dolphin after a failed
attempt to make it talk. The protagonist takes pity on the dolphin and sets out
to rescue it by putting it out to sea, also using a laundry cart. This play appears
to be quite well-known in the United States and was later adapted for
television.

Mr David Zindel, the author’s son, is adamant that the
plot of ‘The Shape of Water’ was derived from his father’s work and commenced copyright infringement proceedings against both the film’s director,
Guillermo del Toro, and Fox Searchlight before the District Court of California
on 21 February 2018.

It cannot be denied that the plots share a number of similarities. Next to the obvious parallel of the laundry cart
rescue, we note that both stories are set during the Cold War, that both
introverted, female custodian protagonists win the trust of ‘their’ respective
aquatic creatures by bringing them food and, ultimately, an affectionate
relationship is formed.

Despite the abovementioned similarities, the film’s
creators and producers vehemently deny that any copyright infringement has
taken place. The plot of ‘The Shape of Water’ is said to have originated from an idea by the film’s
director, Mr del Toro, and author and filmmaker Daniel Kraus. Mr del Toro even denies having ever read or seen Mr Zindel’s play in any form
and points out several differences between the play and his recent film. It is
i.a. argued that ‘The Shape of Water’ does not concern an animal, but instead
an elemental river god. Equating both non-interchangeable ideas would be “tantamount to saying that E.T. would be the same story if you
substituted the alien for a hamster.”

Ideas are not copyrightable

This brings us to the question of the threshold for
copyright protection. As already explained in one of our previous newsletters, copyright protection is automatically granted to
so-called literary or artistic works. There are two conditions for copyright
protection: the work (i) must be expressed in a particular form and (ii) must
satisfy the condition of originality.

In this case, the scope of the first condition, which
relates to the so-called ‘idea-expression dichotomy’, will be paramount.

Indeed, mere ideas are not protectable by copyright
and it may be argued that the major lines of a plot such as described above are
just that: mere ideas. Copyright protection can only apply to the specific
expression of such an idea in a tangible form.

The question of copyrightability of a plot has already
been discussed in a number of cases.

One high-profile court case on this subject concerned
the ‘Da Vinci Code’ decision of the UK Court of Appeal, dating from
2007. The Court of Appeal hereby upheld the UK High Court’s decision that Dan
Brown’s book on the adventures of symbiologist Robert Langdon with regard to
the Holy Grail did not infringe upon the alleged copyright vested in the book ‘The Holy Blood and The Holy Grail’. Indeed, while both books explore the
theme of a secret bloodline within the Catholic church, this theme in itself was
not deemed worthy of copyright protection.

The fact that literary success stories are sometimes
met with jealousy again clearly surfaced a number of years later, when J.K.
Rowling was accused of having ‘stolen’ the plot of the fourth instalment in the
Harry Potter series (‘Harry Potter and the Goblet of Fire’) from the book
‘Willy the Wizard’, which also relates to a year-long competition between
wizards, with one of the stages including the rescue of hostages. Additionally,
both books refer to a game of wizard chess, as well as wizard newspapers, a
dedicated prison and magical maps. However, the UK High Court again rejected the claim, referring i.a. to the ‘Da Vinci Code’
precedent. The quoted similarities were deemed to constitute relatively simple and
abstract ideas, so that no copyright could subsist in them.

We note that accusations of plagiarism have not at all
been confined to the literary world. Films accused of copyright infringement in
the past include James Cameron films ‘The Terminator’ (vs. an episode of ‘The Outer Limit’
regarding a robot from the future that travels back in time) and ‘Avatar’ (vs.
e.g. ‘Dances with Wolves’ and ‘Pocahontas’) as well as a number of Disney
films, such as ‘The Lion King’ (vs. the Japanese animated series ‘Kimba the
White Lion’), ‘Zootopia’ and ‘Frozen’.

Copyright infringement: where to
draw the line?

Even if it is found that the plot details of ‘Let Me
Hear You Whisper’ fulfil both conditions for copyright protection, it remains
to be seen whether the existence of copyright infringement would be accepted
here. Again, the line between acceptable inspiration and unlawful copying is
thin and may even seem arbitrary at times. This seeming arbitrariness was
already noted by the American judge Learned Hand in 1930 in the (in)famous Abie’s Irish Rose case (Nichols v.Universal Pictures). As he rightly pointed out, “while we are as aware as anyone that the
line, wherever it is drawn, will seem arbitrary, that is no excuse for not
drawing it”.

On the Belgian level, we refer to an important music-related
judgment handed down by the Court of Cassation in 2009. The
facts leading up to this judgment were as follows. In 1993, two Belgian
composers filed a short musical composition with SABAM, the main Belgian
copyright society. A few years later, the song ‘You are not alone’, sang by Michael Jackson but composed by R. Kelly,
came out. The Van Passel brothers were struck by the similarities between the
compositions and filed a copyright infringement suit. In the end, they were
successful, obtaining a far-reaching injunction against the famous Michael
Jackson song. The appeal filed by Universal Music with the Belgian Court of
Cassation was unsuccessful. The Court’s judgment, dating from 9 September 2009,
contained an important specification of the threshold for copyright
infringement under Belgian law. In particular, the Court ruled that, if there
are important similarities between two works, the judge must assess whether the
similarities are coincidental or if they stem from a conscious or unconscious
derivation from the earlier work. In case of derivation, there is copyright
infringement. If the original elements contained in both works are sufficiently
similar, a presumption of copyright infringement arises. The author of the
later work can only ‘escape’ a finding of infringement if it is made plausible
that they did not know the earlier work and that they could not reasonably have
acquired knowledge thereof.

Plagiarism or not?

As mentioned above, the creators of ‘The Shape of
Water’ deny having ever read ‘Let Me Hear You Whisper’ or seen its film
adaptation. The question is whether this would be sufficient to exclude
copyright infringement if the dispute were heard by a Belgian court (which is
not the case). Indeed, the case is not at all clear-cut.

In this regard, we note that it is not the first time
that ‘The Shape of Water’ has been confronted with copyright infringement
allegations. Indeed, at the beginning of 2018, there was a degree of concern
that this film resembled the short film ‘The
Space Between Us’ all too
much. Here, also, a female protagonist working at a research centre fell in
love with a fish creature. However, the producers of this short film, the Dutch
Film Academy (NFA), did not take issue with this and pointed out the different identities of
both cinematographic works.

Due to the highly factual nature of the dispute
between the creators of ‘The Shape of Water’ and the relatives of Mr Zindel, it
is impossible to say how this story will play out in court. However, it is safe
to say that, in full awards season, these allegations could not have surfaced
at a worse time. Indeed, the Oscar nomination of ‘The Shape of Water’ for best
original screenplay does not at all sit comfortably with an allegation of
copyright infringement.