The studio’s attorneys argue in a motion to dismiss that the differences between the best picture winner and the play, titled “Let Me Hear You Whisper,” are so great as to make the lawsuit without merit. They also contend that any thematic similarities are also shared with a number of other films, and are not protected by copyright.
“Any ‘similarity’ between these vastly different works derives from the nonprotectible idea of a relationship between a person and an animal (in the case of the Play) or mythical humanoid creature (in the case of the Film) that scientists wish to kill and/or study and experiment on — an idea that has previously been the subject of numerous films, including ‘Free Willy,’ ‘Starman,’ ‘Splash!,’ ‘Project X,’ and ‘E.T. the Extra-Terrestrial,’” the studio’s attorneys state.
The filing recounts the plot and themes of “The Shape of Water” at some length, for the purpose of contrasting it with the 1969 play, written by Paul Zindel. Fox Searchlight argues that the play is primarily concerned with issues of experimentation on animals and advances an anti-war message.
By contrast, the film’s themes “include the power of friendship, the fluid nature of love, the power of music and cinema, unexpected soulmates, society’s intolerance towards outsiders, racism, sexual identity and repression, the banding of misfits, and toxic masculinity (embodied in the form of the abusive Strickland),” the studio states.
The attorneys also argue that the play is intended for children, while “The Shape of Water” is “intentionally adult and complex.”
“Magical realism and eroticism flow throughout,” the attorneys state.
Zindel died in 2003. His son, David Zindel, filed the lawsuit in February, alleging 70 distinct similarities between the two works. Director Guillermo del Toro and the other filmmakers have denied having any knowledge of the play before the claim was first asserted.