Fox Searchlight, Guillermo Del Toro Ask Court to Toss 'Shape of Water' Lawsuit

The filmmaker and studio argue the heirs of playwright David Zindel have offered only an "embarrassingly inaccurate" list of purported similarities between the works.
Courtesy of Twentieth Century Fox
'The Shape of Water'

Best picture Oscar winner The Shape of Water isn't substantially similar to the short play it was accused of copying just before Academy Awards voting began, according to a motion filed Monday by attorneys for Fox Searchlight and director Guillermo del Toro.

The family of late Pulitzer Prize-winning author Paul Zindel sued in February, claiming del Toro's fantasy story is a rip-off of a 1969 play called Let Me Hear You Whisper

Fox Searchlight and del Toro have filed a motion to dismiss the complaint, arguing when the court reads the play and watches the film it will see the works are "completely dissimilar."

"The Play is a short, straightforward, essentially three-person play about the evils of animal experimentation, in which a reserved cleaning woman in a small laboratory convinces a dolphin to talk, thus preventing it from being killed by scientists, then quits her job and leaves the dolphin behind," writes attorney Edward K. Lee. "The Film, by contrast, is a sweeping, and decidedly adult, meld of genres, about a romantic, and sexual, relationship between Elisa, a mute but vibrant female janitor, and a humanoid, amphibian creature with godlike, magical powers. Elisa is ultimately revealed to be not-quite-human after all, but rather her own form of aquatic being; in the end Elisa and the creature escape together and live happily ever after, under the water."

Lee argues that Zindel's heirs have cobbled together an "embarrassingly inaccurate" list of purported similarities between the works and any actual shared similarity is not protectable —  and even if it could be proven that filmmakers copied the play, it wouldn't be enough to support a claim for copyright infringement.

"[T]he Copyright Act does not forbid copying of 'ideas' or 'concepts;' rather, the plaintiff must demonstrate that the copying in question is unlawful, because the defendant copied 'enough of the plaintiff’s [protected] expression of those ideas or concepts to render the two works "substantially similar,"'" writes Lee. "Indeed, the basic concept of a person forming a relationship with an animal (including a marine mammal) or non-human being, and helping it escape from or evade scientists, has been the subject of numerous films, including Free Willy, Starman, Splash!, Project X and E.T. the Extra-Terrestrial — such a basic plot cannot form the basis of a copyright claim."

If it could, Lee argues, then Zindel's play might be deemed infringing of a 1967 novel called The Day of the Dolphin, which centers on dolphins in a lab that are taught to speak to be used in warfare.

A hearing on the motion, which is posted below, is currently set for June 25.