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IP/Entertainment Case Law Updates

Zindel v. Fox Searchlight Pictures, Inc.

In unpublished decision, Ninth Circuit reverses dismissal of copyright claims brought against creators of The Shape of Water film and novel, ruling that dismissal on pleadings was premature because additional evidence could aid in application of Ninth Circuit’s extrinsic test for determining substantial similarity.

Plaintiff David Zindel, son of playwright Paul Zindel, brought copyright infringement claims against the creators of the film The Shape of Water, the winner of the 2018 Academy Award for Best Picture, as well as the publisher of the film’s novelization, alleging that The Shape of Water infringed the copyright to his father’s 1969 play Let Me Hear You Whisper. The district court granted defendants’ motion to dismiss on the grounds that the parties’ works are not substantially similar as matter of law, upon application of the Ninth Circuit’s “extrinsic test” for determining substantial similarity. (Read our summary of the district court’s decision here.) In an unpublished decision, the Ninth Circuit reversed, holding that the district court erred in dismissing the case at the pleading stage because “reasonable minds could differ on whether there is substantial similarity between Let Me Hear You Whisper and The Shape of Water,” such that additional evidence, including expert testimony, could “aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities” between the two works and “whether any similarities are mere unprotectable literary tropes or scènes à faire.” 

Summary prepared by Wook Hwang and Jong-Min Choi