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These days, nearly all movies seem to have similar plot lines. There’s plane crash after plane crash, bank robberies and recaps of the royal family’s life. There were three movies about Winston Churchill in the last two years! So, how similar is too similar? This article uses The Shape of Water lawsuit to shed some light on the fine line between inspiration and duplication in the film industry.

Background of the Case

The Oscar winner for best picture, The Shape of Water, is currently in the middle of a copyright infringement lawsuit. Copyright infringement cases are certainly not new to Hollywood. However, most cases are settled outside of court, which is why we never hear about them.

The son of the late Paul Zindel, a Pulitzer Prize winner for his play, Let Me Hear You Whisper, in 1969, initiated legal proceedings against the creators of The Shape of Water.

In The Shape of Water, set in the 1960s during the Cold War, a lonely female janitor, Elisa works at a government laboratory and falls in love with an Amazonian creature. Elisa soon learns that people at the laboratory plan to kill the creature. Consequently, she has to weigh her feelings against the benefits of freeing the creature.

Zindel’s play follows the life of a female janitor, working in a laboratory that performs experiments on animals. When researchers plan to kill a dolphin, the protagonist carries out a rescue plan to set the dolphin free.

In February, David Zindel filed proceedings in the US, alleging that The Shape of Water is a copy of his father’s play.

The Similarities

The lawsuit included 61 claims of similarities between the movie and the play including that both:

  • stories take place in the 1960s, during the Cold War and in a secret laboratory;
  • female protagonists are quiet or mute and work with a talkative janitor who complains about her marriage;
  • protagonists form a bond with an aquatic creature kept in a glass tank, who only communicates with the protagonist;
  • stories unveil a plan by the authorities of the lab to kill the creature by vivisection;
  • protagonists seek to save the creature and escape from a lab; and
  • escape plans involve a laundry cart.

Copyright Infringement

To establish copyright infringement, you must prove that an original work has been copied. Further, the copying must constitute a substantial part of the work. Therefore, for Zindel to successfully claim copyright infringement, he must establish that copyright first subsists (exists) in his father’s play. He must then prove that the creators of The Shape of Water copied a substantial part of the play.

Does Copyright Subsist?

Determining whether copyright subsists in Zindel’s play involves assessing whether the allegedly copied elements were ideas or expressions of ideas. Copyright only protects the expression of ideas in material form, rather than the idea itself. Therefore, the question is: Is the plot of a lonely, quiet janitor, who rescues a creature from a laboratory, a protectable expression of an idea?

While plot lines alone may not be enough to attract copyright protection, the overwhelming 61 similarities listed in Zindel’s complaint may make a strong case that the plot expressed as the play is an expression of ideas.

Is There a Substantial Reproduction?

If the court finds that copyright does subsist, it then assesses whether there is a substantial reproduction. The substantial test is measured in quality, rather than quantity. Therefore, establishing 61 similarities between the play and the movie would not necessarily constitute a substantial reproduction.

For example, if most of the similarities can be attributed to the genre, common adaptations and the time it was set, a court may not find that there was a substantial reproduction. On the other hand, if specific parts of the film are similar to unique aspects of the play, it may be a substantial reproduction.

Key Takeaways

It is not clear how The Shape of Water lawsuit will unfold, but it highlights an interesting question of potential copyright infringement when inspiration goes too far and turns into duplication. It is important to understand that there is a difference between an idea and the expression of an idea. Copyright only protects the expression of an idea and not the idea itself. Further, for copyright infringement to occur, there must be a substantial reproduction of the original work.

If you have any questions about copyright or need assistance in determining whether someone is infringing your rights, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.


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