Former chief judge Alex Kozinski argued an intellectual property dispute before the Ninth Circuit Dec. 9, the first case he’s argued before his old colleagues since retiring from the bench two years ago following sexual misconduct allegations.
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.
Sidney Thomas, who replaced Kozinski as chief judge on the U.S. Court of Appeals for the Ninth Circuit, filed a complaint in December 2017 against Kozinski in light of the allegations, and the court’s investigation into the alleged misconduct was officially terminated in February 2018.
Kozinski began his “comeback tour” into the public spotlight in the summer of 2018, which included an interview with a California radio station on what it’s like to be a judge, and a tribute he wrote in the Los Angeles Daily Journal to retired U.S. Supreme Court Justice Anthony Kennedy, for whom he’d clerked.
Kozinski now represents David Zindel, who lost in California federal court on claims that Fox Searchlight’s Academy Award-winning film “The Shape of Water” copied his father Paul Zindel’s 1969 play “Let Me Hear You Whisper.” The U.S. District Court for the Central District of California dismissed the case after finding that any extrinsic similarities between the works were too general to merit copyright protection.
Kozinski said during oral argument that it’s “virtually unheard of” to dismiss a copyright case comparing literary works before discovery, calling it “not only unwise, but even a denial of due process.”
“What we are doing here is comparing a full-fledged motion picture—you can see it on the screen, you can hear the dialogue—to the script of a play, something that’s presented on a stage,” which is “particularly difficult” without evidence and expert testimony, Kozinski said.
“When you take a film and compare it to a piece of paper, you have to imagine what the audience feels when it’s acted out,” Kozinski said. “At the very least, a plaintiff as a matter of due process should be entitled to put in evidence.”
Judge Kim McLane Wardlaw expressed concern about ending substantial similarity cases early. “Even grants of summary judgment should be extremely rare in this kind of a case,” Wardlaw said. “I do not want to encourage district court judges to do this.”
Jonathan Zavin of Loeb & Loeb LLP represents Fox Searchlight. Zavin told the court that, “if it requires an expert to explain similarities in a plot, it’s not substantially similar as a matter of law.”
“This is not that close case that your honors are worried about,” Zavin said. “Virtually every element is different” except for “the janitor, the cleaning lady, a creature, a laboratory—and by the way, the laboratories aren’t even similar.”
Kelli L. Sager of Davis Wright Tremaine LLP argued on behalf of MacMillan Publishers Ltd., which published the book version of “Shape of Water.” Unlike the film version, the book and the script can be compared easily at the dismissal stage, Sager said.
President Ronald Reagan nominated Kozinski to the Ninth Circuit in 1985, and he served as chief judge from 2007 to 2014.
Judges Kenneth K. Lee and Matthew F. Kennelly were also on the panel.
The case is Zindel v. Fox Searchlight Pictures, 9th Cir., No. 18-56087, oral arguments heard 12/9/19.