Del Toro and The Shape of a Lawsuit

On 4 March 2018, the Mexican film director Guillermo del Toro won the Academy Award both for Best Director and Best Picture for the movie “The Shape of Water”. Together with these two Academy Awards (and 13 nominations in all), the movie has also been involved in several claims of infringement due to an alleged resemblance with other films, such as the Dutch short film “The Space Between Us” (already dismissed by the creators and the Netherlands Film Academy), the French movies “Amelie” and “Delicatessen” (here), and the 1984 movie “Splash”. Thus far, the only claim to reach the courts was brought by David Zindel, son of the Pulitzer prize winner Paul Zindel.

Zindel v. Fox Searchlight Pictures, Inc. et al, case number 2:18-cv-01435 was filed in the United States District Court Central District of California against Guillermo del Toro (the director, producer, and writer), Daniel Kraus (associate producer), Fox Searchlight Pictures Inc.(production company and distributor of the film) and other involved parties, claiming direct, as well as contributory and vicarious copyright infringement, of Paul Zindel’s play, “Let Me Hear You Whisper”. More on this lawsuit by this Kat. If you haven’t watched the movie, though, spoilers alert!

The Shape of Water

The story takes place in the 1960s during the Cold War and is a love story between a mute cleaning lady (Elisa), who works at a military research facility, and an aquatic god from the Amazon (“The Asset”), who had been captured by the US government. When Elisa finds out that his US captors and the Russians are planning to kill “The Asset”, she puts into motion a plan for setting him free and releasing him into the sea, with the help of her neighbor Giles (painter) and a chatty co-worker Zelda.

The Shape of Water” was released in December 2017. However, del Toro and Kraus had stated several times that they discussed the idea of the movie already in 2011 and, one year later, they started working on the script. Moreover, Guillermo said he collaborated over a period of three years with two designers and one visual effects supervisor to create the appearance of “the Asset”, including his gleaming eyes, Greek-like nose, fierce claws, agile legs and artful gills. In addition, del Toro has stated several times that the movie was influenced by the film, “The Creature from the Black Lagoon”. Having watched that movie at the age of 6, del Toro had wanted ever since that the creature ends up with the girl.

The movie has been praised by critics and the audience. Also, it has been prominently noted that the film deals with issues of discrimination (such as sexual preference and skin color). Del Toro revealed that it carries a message of love and unity: “The movie is called ‘The Shape of Water’ because love is like the shape of water, it doesn’t have a form. When there is love, it might be in the form of someone of the same genre, or with a big age difference or in various forms but you recognize it, immediately [This Kat's translation from Spanish]”. “Water takes the shape of whatever is holding it at the time and although water can be so gentle, it’s also the most powerful and malleable force in the universe. That’s also love, isn’t? It doesn’t matter what shape we put love into, it becomes that, whether it’s a man, woman or creature”.

The novelization of the movie, co-authored by del Toro and Kraus, was published by Macmillan on 6 March 2018.

The Lawsuit

On 21 February 2018, David Zindel filed the lawsuit, alleging that the movie is an unauthorized derivative work that “copies the story, elements, characters, and themes … even minor overlapping elements, such as unusual words, phrases, or images” from Zindel’s play, “Let Me Hear You Whisper”. He is seeking both injunctive and monetary relief.

Zindel’s play is a story about a lonely cleaning lady (Helen), who works at a “scientific laboratory facility that performs animal experiments for military use”, where she “forms a deep, loving bond” with a dolphin. Helen decides to rescue the dolphin when she becomes aware that the animal is “slated for brain dissection” in the play, and for vivisection in the TV show. The play was written in 1969 and adapted for TV by the National Education Television Network (NET) in the same year and in 1990 by the A&E Network.

In the lawsuit, sixty-one similarities were pointed out between Zindel’s play and del Toro’s movie, such as that:

1. Both stories take place in a secret research laboratory during the Cold War (the 1960´s), where “an aquatic creature of advance intelligence confined to a glass tank” is experimented on for military reasons.

2. Both protagonists are quiet, unmarried, lonely cleaning ladies, wearing green coats, who communicate with the creature.

3. Both protagonists bond with the creature by bringing him food and both dance with a mop in front of the creature while romantic vintage music is played in the background.

4. Both protagonists have chatty co-workers (Dan and Zelda).

5. Both creatures are planned to be killed by vivisection; both protagonists decide to save the creature in a laundry cart with the goal of releasing him into the sea.

It was also argued that Zindel’s play “is a beloved work of fantasy/science fiction” that has been repeatedly published and the TV shows have been often rebroadcasted. The claim is that Kraus “came up with the idea for the picture the same year that the A&E TV show was on air,” and that he was already familiar with Zindel’s work, given that the book “The Pigman”, written by Zindel, was included in Kraus’ 2017 article “Booklist’s 50 Best YA [Young Adult] Books of All Time”.


Snorky, a talkative dolphin
Fox Searchlight Pictures Inc., one of the co-defendants, published a statement, maintaining that Zindel’s claims are baseless and the timing of the lawsuit was intended to coincide with the voting schedule of the Members of the Academy (it was filed one day after voting commenced) with the aim to reach a quick settlement. Meanwhile, Guillermo also denied the accusations and remarked that, during his 25 years in the industry, he has never been involved in such a controversy and he always has been totally up front regarding the “influences” on his movies.

Furthermore, Del Toro affirmed that he has neither read nor seen Zindel’s play and none of his collaborators mentioned it to him, which, if true, would support a claim of independent creation. He also highlighted that “[t]he trope of an animal being liberated could be found in anything from Project X to Splash, to Born Free and Free Willy, to Starman, to an episode of Hey Arnold or The Simpsons… You could also include The Day of the Dolphin, which in fact was written two years before the play”. However, his “story and the layers are completely and entirely complex … [and] are completely original”.

In view of the above, the lawsuit does implicate basic principles of copyright law. Both Zindel's play and the movie involve a lonely cleaning lady who wants to release a captive creature from a research facility. Is this a protectable expression or an unprotectable idea? That said there are some notable differences in the respective story lines: the protagonist and the god from the Amazon fall in love in the movie, while the protagonist only bonds with the dolphin in the play.

Consider also that stories involving research facilities in which captive creatures are released have been addressed in various films, such as the movies mentioned by del Toro (“Free Willy”, “Project X”, “Splash”), as well as “The Plague Dogs” (1984), “The Fly” (1986), “The Fifth Element” (1997), “Paulie” (1998), “The Shaggy Dog” (2006), the “Rise of the Planet of the Apes” (2011), and “Maximum Ride” (2016 and book series 2005-2015).

Further consider that at least some of the central elements in the movie might fall under the scènes à faire doctrine, since the story takes place during the Cold War in a research facility, with Russian spies, scientists, and supervisors; a suitable container (water tank) for the creature to be examined (“The Asset”); facility procedures for experimentation (such as vivisection); and the use of the color green on clothing and other visual elements (green was the color of the 60s, see here, here, here and here).

This Kat (and presumably Kat readers as well) will eagerly follow this case, beginning from the motion to dismiss filed by the defendants.

Stay tuned!

“The Shape of Water” pictures are from the official website and Facebook page.
“The Creature from the Black Lagoon” picture is from Ben Chapman website.
“Let Me Hear You Whisper” cover picture is from Paul Zindel website.
Comparison pictures are from the Hollywood Nerd website which states that it “expresses the point of view of the Zindel family”.
Snorky picture is from the episode 1, season 12 “Treehouse of Horror XI”, from the official website of The Simpsons.
Del Toro and The Shape of a Lawsuit Del Toro and The Shape of a Lawsuit Reviewed by Verónica Rodríguez Arguijo on Thursday, March 29, 2018 Rating: 5

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