Ex-Judge Kozinski Wins IP Ruling After Scandal-Marred Retirement

Former Ninth Circuit Judge Alex Kozinski won his first case at his former court since retiring from it after sexual misconduct allegations, getting a copyright case over the film “The Shape of Water” revived because a California federal court dismissed it prematurely.

In 2017, at least 15 women, including some former law clerks, accused Kozinski of groping them, showing them pornography, or making off-color comments. Kozinski retired shortly after, and began his “comeback tour” into the public spotlight in the summer of 2018.

Kozinski now represents David Zindel, who lost at the U.S. District Court for the Central District of California on claims that Fox Searchlight Pictures Inc.’s Academy Award-winning film “The Shape of Water” copied his father Paul Zindel’s 1969 play “Let Me Hear You Whisper.”

Zindel said that both works tell the “idiosyncratic story of a lonesome, unmarried janitorial cleaning woman working the graveyard shift” at a military lab who “becomes fascinated by a fantastic intelligent aquatic male creature, held captive in a glass tank,” and argued the works both have “vivid fantasy sequences and shared elements of character, setting, dialogue, and plot.”

The district court had dismissed the case after finding that any extrinsic similarities between the works were too general to merit copyright protection and that the works weren’t substantially similar as a matter of law.

The U.S. Court of Appeals for the Ninth Circuit agreed with Kozinski that additional evidence was needed to determine how similar the works were. Early rulings are “not highly favored on questions of substantial similarity,” and the district court shouldn’t have dismissed the case because reasonable minds could differ on whether the works were similar enough to find copyright infringement, the Ninth Circuit said.

“Additional evidence, including expert testimony, would aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities that Zindel identified in the works’ expressive elements,” the court said.

The Ninth Circuit said more evidence would also help the district court determine whether any similarities are “mere unprotectable literary tropes.”

Judge Kim McLane Wardlaw, Kenneth Kiyul Lee, and Matthew F. Kennelly jointly wrote the opinion.

Toberoff & Associates PC also represented Zindel. Loeb & Loeb LLP represented Fox.

The case is Zindel v. Fox Searchlight Pictures Inc., 9th Cir., No. 18-56087, unpublished 6/22/20.