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The producers of The Shape of Water will no longer have to contend with a copyright lawsuit that claims that Oscar-winning Guillermo del Toro film infringed the work of Pulitzer Prize-winning author Paul Zindel. On Friday, Disney’s Fox units, Guillermo del Toro and other defendants filed court papers indicating that the parties in the litigation had reached an agreement to dismiss the case.
When contacted about the development, a spokesperson for Searchlight (one of the co-defendants) released the following statement: “David Zindel, the son of Paul Zindel, author of Let Me Hear You Whisper, acknowledges, based on confidential information obtained during the litigation process, that his claims of plagiarism are unfounded. He acknowledges Guillermo del Toro as the true creator of The Shape of Water. Any similarity between the two works is coincidental.”
Zindel’s attorney hasn’t responded to an opportunity to comment.
The suit earned international attention when it was filed in Feb. 2018. Zindel’s family went to court right before Oscar voting finished that year, and the allegation that Guillermo del Toro’s movie was substantially similar to Let Me Hear You Whisper prompted a legal battle where judges looked at two works where love of a creature trapped in a science facility factored heavily.
It didn’t take particularly long for a district court judge to initially reject the case. Just months after the suit was filed, U.S. District Court Judge Percy Anderson wrote, “Although the Play and the Film share the basic premise of an employee at a scientific facility deciding to free a creature that is subjected to scientific experiments, that concept is too general to be protected.”
But last June, the 9th Circuit Court of Appeals decided the judge was too rash. According to a memorandum opinion at the time, “Though both works properly were presented to the district court, additional evidence, including expert testimony, would aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities that Zindel identified in the works’ expressive elements, particularly the plausibly alleged shared plot sequence.”
This week, both sides were scheduled to present expert reports and witness designations. A trial was set for July. Instead, the case is being dropped. Both sides will bear their own legal expenses.
For legal insiders, the Shape of Water litigation also is a postscript to another high-profile case in the entertainment industry from a decade back — that being the long war over rights to Superman. Marc Toberoff, who represented the Zindel family, once represented Superman co-creators Jerry Siegel and Joe Shuster in an attempt to terminate a copyright grant to Warner Bros. The Superman studio, in turn, was represented by Daniel Petrocelli, whose showcase winning move in that old case was to allege that Toberoff had tortiously interfered with deals. After the Shape of Water litigation was revived by the 9th Circuit, Petrocelli took over Fox’s defense from Loeb & Loeb — presenting a rematch between the two attorneys. There won’t be a trial in this case either.
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