Doug Jones and Sally Hawkins in The Shape of Water Credit: Fox Searchlight Pictures

The Shape of Water
, which at Sunday night’s Academy Awards won the Oscars for best picture and best director (plus two others, for production design and music), is an admittedly derivative work. The men behind it, director Guillermo del Toro and associate producer Daniel Kraus, have repeatedly said that their intention from the beginning was to make a film inspired by the story of the humanoid amphibian in the 1954 classic horror flick Creature From the Black Lagoon. Del Toro has said he’d wanted for years to turn that story into a romance but couldn’t figure out how to do it.

More than once, del Toro and Kraus have explained that the idea for this darkly atmospheric fantasy film gelled at their initial meeting, a breakfast in 2011, to discuss another matter, a book del Toro wanted Kraus to coauthor. As Janet Potter reported in a recent Reader story, when asked by del Toro what else he was working on, Kraus summarized the plot for his own next project. It went like this: “the Creature from the Black Lagoon is put in a lab; a janitor finds him and decides to break him out and put him in her tub.”

Kraus told Potter the idea came to him on a tennis court in Iowa when he was 15 years old. Kraus, who lives in Evanston and is an editor at Booklist, will turn 43 this year.  That means he would have had his idea in 1990, the year a new production of Paul Zindel’s 1969 one-act play Let Me Hear You Whisper ran nationally on the A&E television network. It featured a solid cast that included Anthony Quinn (as host) and Jean Stapleton and had multiple runs on the cable channel. An earlier production, by public television, also had multiple broadcasts, and the play had been published numerous times in print. 

Neither Kraus nor del Toro mentioned Zindel’s play when they talked about the origins of The Shape of Water.

Paul Zindel, who won the 1971 Pulitzer Prize for The Effects of Gamma Rays on Man-in-the-Moon Marigolds and whose novel The Pigman appears prominently in a list of best young adult books published by Kraus last year, died in 2003. On February 21, his heirs (a son and daughter) filed suit in a federal district court in Los Angeles charging copyright infringement in The Shape of Water. Both Kraus and Del Toro are named in the suit, along with Fox Searchlight Pictures, Twentieth Century Fox Film Corporation, and Macmillan Publishers, which is bringing out a Shape of Water novel coauthored by del Toro and Kraus later this week.

According to the complaint, The Shape of Water “brazenly copies the story, elements, characters, and themes” from Let Me Hear You Whisper, which “tells the story of a lonely janitorial cleaning woman who works the graveyard shift at a scientific laboratory facility that performs animal experiments for military use.”

The complaint continues: “[S]he becomes fascinated by a fantastic intelligent aquatic creature, held captive in a glass tank. To the sounds of romantic vintage music playing on a record player, she forms a deep, loving bond with the creature, discovering that it can communicate—but choses [sic] to do so only with her. When she learns that the authorities plan to kill the creature, in the name of scientific progress, she hatches a plan to liberate the creature in a rolling laundry cart and release it at a dock that feeds into the ocean, where it will finally be free.”

There are some differences. The relationship portrayed in Zindel’s play, between the aquatic creature and the quiet janitor (who, as in the movie, lives alone and interacts on the job with a talkative coworker prone to complaining about her husband), never develops into the carnal affair of the film. Let Me Hear You Whisper is an ecological conscience story circumspect enough to be taught in schools. And then there’s this: the creature in the play is a dolphin, played by a puppet.

Del Toro has said that he never heard of Zindel’s play, and Fox Searchlight Pictures told the Los Angeles Times in a statement that the claims in the lawsuit are “baseless.”  According to Fox Searchlight, the suit “seems timed to coincide with the Academy Award voting cycle in order to pressure our studio to quickly settle.” Neither Kraus nor Macmillan responded to requests for comment.

But the Zindel family’s lawyer, Marc Toberoff, in a phone interview, characterized those statements as “typical blanket denial and deflection.”

“They set the timing, not us,” he says. “They released the film just under the wire in December to qualify for the Oscars. After the release there was a spontaneous groundswell of objections on the internet from people from all walks of life who were saying, ‘I remember being taught that in high school.’ It was bubbling up on the internet, saying ‘Why doesn’t Zindel have credit?'”

Toberoff said at that point, the Zindel family hadn’t yet seen the film. “After seeing the movie, they immediately complained to Fox, in mid-January. I wasn’t contacted until February 14. Four weeks went by where Fox just gave them the runaround.”

Also, he added, it wouldn’t have made any sense for the Zindels to try to thwart honors for the film: “The measure of damages in a copyright infringement case are the profits of the infringing work. You would want the picture to be as profitable as possible.”

Toberoff, whose previous intellectual property case clients include Superman creators Jerry Siegel and Joe Shuster, said he rejects at least 95 percent of the cases that come across his desk. In this case, he says, “copyright infringement is based on access and substantial similarities, and I think we have both.

“If you look at what makes del Toro’s film great, it’s not the bad guy, it’s not the general, it’s not the cold war subplot,” Toberoff continues. “It’s really this unlikely loving bond between an introverted janitorial cleaning lady, who is treated badly by her superiors, and forms, through communication and empathy, this deep, loving bond with this very intelligent aquatic creature, and that triumphs. And that’s all in the play.”