1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:09,119 --> 00:00:13,240 Speaker 1: If I told you of Honor the Princess without Voice, 3 00:00:14,920 --> 00:00:21,320 Speaker 1: what would I say? Giamaro del Toro's Oscar winning film 4 00:00:21,400 --> 00:00:25,160 Speaker 1: The Shape of Water is part romance, part science fiction, 5 00:00:25,200 --> 00:00:28,479 Speaker 1: and part fairy tale, the story of a lonely female 6 00:00:28,600 --> 00:00:32,199 Speaker 1: janitor working nights at a military research lab who falls 7 00:00:32,200 --> 00:00:35,440 Speaker 1: in love with a supernatural aquatic creature held captive in 8 00:00:35,520 --> 00:00:38,600 Speaker 1: a glass water tank. But the son of Bulletzer Prize 9 00:00:38,640 --> 00:00:42,960 Speaker 1: winning playwright Paul Zindell claims that the film brazenly copied 10 00:00:43,000 --> 00:00:46,479 Speaker 1: his father's nineteen sixty nine play let Me Hear You Whisper. 11 00:00:46,800 --> 00:00:50,480 Speaker 1: A federal judge dismissed the copyright complaint, but the Ninth 12 00:00:50,479 --> 00:00:53,920 Speaker 1: Circuit Court of Appeals revived the case, saying the judge 13 00:00:53,920 --> 00:00:57,920 Speaker 1: had dismissed it prematurely. Interestingly, it was former Ninth Circuit 14 00:00:58,000 --> 00:01:00,840 Speaker 1: Judge Alex Kazinski who won the this missile in his 15 00:01:00,960 --> 00:01:04,520 Speaker 1: first case at his former court since retiring after sexual 16 00:01:04,560 --> 00:01:09,479 Speaker 1: misconduct allegations, joining me as intellectual property litigator Terence ross 17 00:01:09,520 --> 00:01:13,800 Speaker 1: A partner Captain uten Rosenman so Terry. What did Zindelle's 18 00:01:13,880 --> 00:01:19,000 Speaker 1: son say the similarities were between the play and the film. Well, 19 00:01:19,120 --> 00:01:24,800 Speaker 1: both works revolve around a woman who works at an 20 00:01:25,080 --> 00:01:32,440 Speaker 1: undefined government or private laboratory that does research into aqua 21 00:01:32,560 --> 00:01:38,440 Speaker 1: marine life. She works the night shift, and in both 22 00:01:38,520 --> 00:01:44,240 Speaker 1: works she becomes involved in a relationship with one of 23 00:01:44,280 --> 00:01:48,960 Speaker 1: the subjects being studied at the lab, and in both 24 00:01:49,000 --> 00:01:54,440 Speaker 1: works attempts them to quote unquote rescue the subject understudy 25 00:01:54,440 --> 00:01:58,720 Speaker 1: from this laboratory by taking away. Those are the similarities, 26 00:01:58,960 --> 00:02:03,400 Speaker 1: and on their face they do seem to bear some likeness. However, 27 00:02:04,240 --> 00:02:09,880 Speaker 1: there are many very specific details that differ fairly dramatically 28 00:02:10,000 --> 00:02:13,280 Speaker 1: between the two works. So it's not enough to have 29 00:02:13,400 --> 00:02:18,480 Speaker 1: a basic plot that seems almost exactly the same, no, 30 00:02:18,840 --> 00:02:25,360 Speaker 1: because that would really cut off from public use very 31 00:02:25,360 --> 00:02:32,560 Speaker 1: wide numbers of types of plots. One of my favorite 32 00:02:32,680 --> 00:02:36,959 Speaker 1: types of plots is commonly referred to as the pen 33 00:02:37,160 --> 00:02:41,520 Speaker 1: Indians plot, and it's a murder mystery plot in which 34 00:02:41,800 --> 00:02:44,080 Speaker 1: the question is not who is the murderer, but who's 35 00:02:44,120 --> 00:02:46,240 Speaker 1: going to be the last victim? And the name is 36 00:02:46,240 --> 00:02:49,600 Speaker 1: derived from an Agatha Christie work. And you see this 37 00:02:49,760 --> 00:02:53,640 Speaker 1: plot being used over and over again really creatively in 38 00:02:53,840 --> 00:02:57,320 Speaker 1: a recent movie involving sharks called into the blue. So 39 00:02:57,680 --> 00:03:02,120 Speaker 1: you really just cannot say that similarity of plot in 40 00:03:02,160 --> 00:03:07,720 Speaker 1: and of itself justifies copyright protection without taking away just 41 00:03:08,120 --> 00:03:13,240 Speaker 1: enormous amounts of creative material that could be used for 42 00:03:13,320 --> 00:03:16,400 Speaker 1: different types of works. Explain the reason the court gave 43 00:03:16,480 --> 00:03:20,160 Speaker 1: for dismissing it. So, in this sort of copyright lawsuit 44 00:03:20,400 --> 00:03:24,280 Speaker 1: where there is not literal copying, by that I mean 45 00:03:24,440 --> 00:03:27,240 Speaker 1: taking a book and putting it on the xerox machine 46 00:03:27,639 --> 00:03:29,680 Speaker 1: and copying page by page, you're putting it on a 47 00:03:29,720 --> 00:03:32,880 Speaker 1: digital scanner and copying it page by page and then 48 00:03:33,040 --> 00:03:36,960 Speaker 1: posting to the internet, where you don't have that literal copying, 49 00:03:37,200 --> 00:03:40,920 Speaker 1: but instead you have what's known as substantial similarity copying. 50 00:03:41,160 --> 00:03:45,920 Speaker 1: The courts of uniformly required that a copyright owner should 51 00:03:45,960 --> 00:03:50,200 Speaker 1: have to prove up two things to establish copyright infringement, 52 00:03:50,400 --> 00:03:53,080 Speaker 1: and these go by the name the extrinsic test and 53 00:03:53,120 --> 00:03:57,920 Speaker 1: the intrinsic test. The extrinsic test is essentially a requirement 54 00:03:58,000 --> 00:04:03,320 Speaker 1: that the copyright owner proved that certain protectable elements of 55 00:04:03,320 --> 00:04:08,120 Speaker 1: the two works are sufficiently similar that the case should 56 00:04:08,120 --> 00:04:10,760 Speaker 1: be allowed to go to a jury. The jury then 57 00:04:10,880 --> 00:04:14,880 Speaker 1: decides on the intrinsic test, and they look at the 58 00:04:14,920 --> 00:04:19,320 Speaker 1: total concept and feel of the work and decide whether 59 00:04:19,400 --> 00:04:23,160 Speaker 1: or not they're substantial similarity in that regards, and if 60 00:04:23,160 --> 00:04:25,560 Speaker 1: they agree that there is, then you do have a 61 00:04:25,600 --> 00:04:28,760 Speaker 1: case for copyright infringement. So it's really a two step 62 00:04:28,880 --> 00:04:33,880 Speaker 1: process in these substantial similarity cases. And here the district 63 00:04:33,880 --> 00:04:37,160 Speaker 1: court judge who is entitled to make the determination with 64 00:04:37,200 --> 00:04:40,279 Speaker 1: respect to the first part of the determination, nai the 65 00:04:40,360 --> 00:04:44,159 Speaker 1: extrinsic test, he did not feel that there was substantial 66 00:04:44,240 --> 00:04:48,960 Speaker 1: similarity amongst the protected elements, that is, elements of the 67 00:04:49,000 --> 00:04:52,800 Speaker 1: play and elements of the movie that are actually copyrightable, 68 00:04:53,200 --> 00:04:55,240 Speaker 1: and therefore he would not allow it to go to 69 00:04:55,320 --> 00:04:58,039 Speaker 1: a jury in the first place. So how did Judge 70 00:04:58,120 --> 00:05:02,279 Speaker 1: Kazynski convinced the Knights Circuit to reverse that? Well, I 71 00:05:02,320 --> 00:05:07,520 Speaker 1: think Judge Kazinski did two interesting things that ultimately want 72 00:05:07,520 --> 00:05:10,760 Speaker 1: a reversal for the plaintiff. And the first thing, and 73 00:05:10,760 --> 00:05:13,520 Speaker 1: the part of this, if I'm very interesting, is that 74 00:05:13,640 --> 00:05:15,760 Speaker 1: they made it clear to the appellate court that this 75 00:05:15,960 --> 00:05:19,920 Speaker 1: was not some whacka do who happened to have typed 76 00:05:20,000 --> 00:05:23,599 Speaker 1: up a manuscript or a song or it's play that 77 00:05:23,720 --> 00:05:26,359 Speaker 1: they had in their attic for twenty years, and it was, 78 00:05:26,520 --> 00:05:29,039 Speaker 1: in other words, an attempt to sort of ride the 79 00:05:29,080 --> 00:05:32,760 Speaker 1: coattails of some established work. And here you had a 80 00:05:32,920 --> 00:05:38,920 Speaker 1: very established playwright, Paul Zindel, who actually won the Pulitzer 81 00:05:38,920 --> 00:05:44,360 Speaker 1: Prize for playwriting. This particular play of his has been 82 00:05:44,640 --> 00:05:49,520 Speaker 1: widely performed. It is actually in its tenth print edition. 83 00:05:49,960 --> 00:05:54,640 Speaker 1: It is in scholastic textbooks used at the high school 84 00:05:54,760 --> 00:05:59,000 Speaker 1: level to teach dramatic literature. And so far from being 85 00:05:59,040 --> 00:06:03,920 Speaker 1: sort of whackative, this was a very serious author, was 86 00:06:04,120 --> 00:06:10,760 Speaker 1: a very important play and that largely went unaccounted for 87 00:06:11,160 --> 00:06:14,720 Speaker 1: at the district court level, but was emphasized in the 88 00:06:14,760 --> 00:06:17,039 Speaker 1: Court of appeal. So that's the first thing I think 89 00:06:17,080 --> 00:06:20,279 Speaker 1: that Jessica Znski did that sort of shifted the ground 90 00:06:20,480 --> 00:06:23,680 Speaker 1: for the decision here. The second thing that was done 91 00:06:23,800 --> 00:06:28,520 Speaker 1: was managed to drill down into specific elements of the 92 00:06:28,560 --> 00:06:33,440 Speaker 1: play and the movie that did seem somewhat suspiciously similar. 93 00:06:33,680 --> 00:06:36,560 Speaker 1: And I thought, again that was an element that had 94 00:06:36,640 --> 00:06:39,560 Speaker 1: gone unaccounted for at the district court. And I think 95 00:06:39,560 --> 00:06:42,160 Speaker 1: the combination those two things presenting to the Ninth Circuit 96 00:06:42,320 --> 00:06:45,239 Speaker 1: that this was not somebody trying to get a free 97 00:06:45,320 --> 00:06:47,839 Speaker 1: ride on the coattails of somebody else's creative work that 98 00:06:47,920 --> 00:06:51,080 Speaker 1: you had here, a very serious and important American author 99 00:06:51,160 --> 00:06:55,840 Speaker 1: with a very serious importance play, and with incredible similarities 100 00:06:55,960 --> 00:06:59,000 Speaker 1: at a detailed level. That those two elements caused the 101 00:06:59,080 --> 00:07:03,200 Speaker 1: Ninth Circuit to say, hey, let's pause here, and maybe 102 00:07:03,360 --> 00:07:06,560 Speaker 1: the district Court was too quick in coming to its conclusion. 103 00:07:06,880 --> 00:07:09,880 Speaker 1: Let's send it back and ask the district court to 104 00:07:09,960 --> 00:07:12,480 Speaker 1: take another look at this. What will the district court 105 00:07:12,600 --> 00:07:15,800 Speaker 1: do when it gets the case back. It's clear to 106 00:07:15,840 --> 00:07:18,120 Speaker 1: me that the district court is going to have to 107 00:07:18,200 --> 00:07:21,720 Speaker 1: allow the discovery stage of a case to go forward. 108 00:07:22,000 --> 00:07:24,800 Speaker 1: And by the discovery stage, I mean point which each 109 00:07:24,840 --> 00:07:30,239 Speaker 1: side gets to take depositions of each other produced documents. 110 00:07:30,320 --> 00:07:34,280 Speaker 1: And most importantly I found this fascinating. The Pelic Court 111 00:07:34,400 --> 00:07:39,120 Speaker 1: specifically said that the district court should look at expert 112 00:07:39,280 --> 00:07:43,640 Speaker 1: testimony in deciding whether these were substantially similar. So each 113 00:07:43,640 --> 00:07:47,000 Speaker 1: side will have to hire and retain an expert who 114 00:07:47,080 --> 00:07:49,520 Speaker 1: will look at the case and present their views on 115 00:07:49,520 --> 00:07:52,760 Speaker 1: whether these works are substantially similar. And I think that's 116 00:07:52,760 --> 00:07:55,480 Speaker 1: going to be a very big part of this case. 117 00:07:55,600 --> 00:07:58,360 Speaker 1: Back at the district court level, Terry, could the district 118 00:07:58,360 --> 00:08:01,640 Speaker 1: court have been sort of influenced by the fact that 119 00:08:01,680 --> 00:08:06,200 Speaker 1: you had this very famous now Academy Award winning director 120 00:08:06,640 --> 00:08:10,080 Speaker 1: Del Touro, who said, I've never read or seen the play. 121 00:08:10,160 --> 00:08:12,600 Speaker 1: I've never heard of it, and he has such a 122 00:08:12,640 --> 00:08:15,400 Speaker 1: body of work. I don't think so in this case. 123 00:08:15,800 --> 00:08:18,840 Speaker 1: In this case, I think the district court actually attempted 124 00:08:19,000 --> 00:08:22,800 Speaker 1: to divorce itself from the peripheral manners as to who 125 00:08:22,880 --> 00:08:25,920 Speaker 1: was who on either side and focus instead on a 126 00:08:26,040 --> 00:08:28,880 Speaker 1: handful of the elements that were different the plot. So 127 00:08:29,080 --> 00:08:33,160 Speaker 1: in the play, it is absolutely clear that the subject 128 00:08:33,280 --> 00:08:37,000 Speaker 1: of study by this research laboratory is a dolphin, perhaps 129 00:08:37,000 --> 00:08:40,360 Speaker 1: a very intelligent dolphin, but a dolphin nonetheless, Whereas in 130 00:08:40,760 --> 00:08:43,520 Speaker 1: the Shape of Water it is also clear that this 131 00:08:43,640 --> 00:08:48,040 Speaker 1: is not an animal but rather some form of unknown 132 00:08:48,120 --> 00:08:51,720 Speaker 1: humanoid that dwells in the water, and that seemed to 133 00:08:51,720 --> 00:08:55,200 Speaker 1: be very significant. That difference seemed to be very significant 134 00:08:55,240 --> 00:08:58,439 Speaker 1: to the trial judge. There were some other significant parts 135 00:08:58,520 --> 00:09:01,040 Speaker 1: of it that are different between the two works that 136 00:09:01,160 --> 00:09:04,120 Speaker 1: the trial judge really got into. But in doing so, 137 00:09:04,559 --> 00:09:08,679 Speaker 1: it seems the trial judge missed what is the core 138 00:09:08,840 --> 00:09:12,960 Speaker 1: focused at such an early stage, which is not what 139 00:09:13,040 --> 00:09:17,120 Speaker 1: are the differences but what are the similarities? And I 140 00:09:17,160 --> 00:09:21,440 Speaker 1: think the Ninth Circuit was gently reminding trial judges that 141 00:09:21,480 --> 00:09:24,960 Speaker 1: their focus has to be on what are the similarities 142 00:09:25,120 --> 00:09:28,280 Speaker 1: and are they sufficient to move to the next stage, 143 00:09:28,320 --> 00:09:30,920 Speaker 1: I either discovery phase, and that they should not be 144 00:09:30,960 --> 00:09:34,800 Speaker 1: overly focused on what are the differences between the two works. 145 00:09:34,840 --> 00:09:38,560 Speaker 1: So it's too early to say whether or not the 146 00:09:38,640 --> 00:09:41,120 Speaker 1: playwrights of State will be able to make out a 147 00:09:41,440 --> 00:09:46,160 Speaker 1: case against Searchlight Pictures. Absolutely too early. I mean the 148 00:09:46,559 --> 00:09:50,640 Speaker 1: Ninth Circuit says in its short decision that reasonable minds 149 00:09:50,679 --> 00:09:55,040 Speaker 1: could differ on the issue of substantial similarity at this point, 150 00:09:55,240 --> 00:09:57,840 Speaker 1: and I think that's true. In reading both the District 151 00:09:57,840 --> 00:10:00,800 Speaker 1: Court's decision and the Appeal Court decision, I was struck 152 00:10:00,800 --> 00:10:04,040 Speaker 1: by what a close call this was. And in such 153 00:10:04,080 --> 00:10:09,560 Speaker 1: an early stage of a copyright lawsuit, close calls typically 154 00:10:09,800 --> 00:10:13,160 Speaker 1: go to the plaintiff and then you let the case 155 00:10:13,240 --> 00:10:17,600 Speaker 1: flush itself out before you actually make a determination, and 156 00:10:17,679 --> 00:10:20,880 Speaker 1: so I think that's what struck the Ninth Circuit here. 157 00:10:21,000 --> 00:10:24,280 Speaker 1: Now keep in mind they specifically decided that this was 158 00:10:24,480 --> 00:10:28,080 Speaker 1: a non presidential decision, that it would not be published 159 00:10:28,360 --> 00:10:31,640 Speaker 1: in their federal reporter. It will simply appear as what 160 00:10:31,840 --> 00:10:35,680 Speaker 1: those a per curium opinion that is not fitable as 161 00:10:35,760 --> 00:10:39,960 Speaker 1: president in future Ninth Circuit cases, and that tells a 162 00:10:40,080 --> 00:10:44,160 Speaker 1: lawyer something right off the bat. The Appellate Court felt 163 00:10:44,280 --> 00:10:47,120 Speaker 1: that they were not breaking any new ground here from 164 00:10:47,120 --> 00:10:50,320 Speaker 1: a legal perspective. In fact, they were simply correcting what 165 00:10:50,480 --> 00:10:53,600 Speaker 1: they viewed as an error by the District Court. Thanks Terry. 166 00:10:53,840 --> 00:10:57,480 Speaker 1: That's Terence Raws, a partner Captain Uten Rosenman. And that's 167 00:10:57,480 --> 00:11:00,360 Speaker 1: it for the edition of Bloomberg Law. I'm ju. Also, 168 00:11:00,520 --> 00:11:02,760 Speaker 1: thanks so much for listening, and remember to tune in 169 00:11:02,760 --> 00:11:05,560 Speaker 1: to the Bloomberg Last Show weeknights at ten pm Eastern 170 00:11:05,760 --> 00:11:07,080 Speaker 1: right here on Bloomberg Radio.