Alex Kozinski, the former chief judge of the U.S. Court of Appeals for the Ninth Circuit, arguing in David Zindel v. Fox Searchlight Pictures. (Photo: Courtesy Photo)

Making his return to the U.S. Court of Appeals for the Ninth Circuit nearly two years after abruptly retiring from the bench amid sexual harassment allegations, Alex Kozinski on Monday urged a Ninth Circuit panel to revive a copyright lawsuit against the filmmakers behind the Academy Award-winning movie "The Shape of Water."

Kozinski contended that his client, the son of Pulitzer Prize-winning author Paul Zindel who claims that the film and its novelization infringe copyrighted elements of his father's play "Let Me Hear You Whisper," didn't get a fair shake from a district court judge. U.S. District Judge Percy Anderson dismissed the case last year on a motion to dismiss without taking any evidence or holding oral argument.

"A plaintiff, as a matter of due process, should be able to put in evidence," Kozinski said, early in his argument.

Kozinski, who resigned in December 2017 after a string of female law clerks, and in one instance, a former judicial colleague from his prior stint on the U.S. Court of Federal Claims, accused him of sexual misconduct and harassment, opened his 15 minutes of allotted time by saying "Good morning. May it please the court."

Judge Kim Wardlaw, the only one of the three panel judges who served on the bench alongside Kozinski, responded, "Good morning," from her center seat on the bench presiding over the argument. She and the other two panel members—Judge Kenneth Lee, a recent appointee of President Donald Trump, and U.S. District Judge Matthew Kennelly of the Northern District of Illinois, sitting by designation—had probing questions for either side, particularly aimed at when, if at all, it's appropriate for a judge to dismiss a copyright case involving expressive literary works so early in a case.

Kennelly, in particular, asked Kozinski what expert testimony would add in a case such as this one. If a judge can't do a comparison on the basis of the works in front of them, Kennely said, that's "a nice way of saying all these cases have to go to trial."

Lee, who appeared the most skeptical of Kozniski's argument to revive the case, asked if the plaintiff could raise a claim to substantial similarity between the works just on the basis that they all involve a female janitor who tries to smuggle a creature out of a lab with a clothes hamper. (In Zindel's work, a play often performed in middle and high schools, a female janitor plots to save a dolphin from a medical testing facility. The film and novel involve a female janitor who plots to help an Amazonian river god, whom she falls in love with, escape a military testing lab.) Lee suggested the idea of having a lowly character form a connection with a magical creature was "a typical Hollywood cliche."

"In Hollywood, as in life, there's nothing new under the sun," Kozinski said. "None of us build from scratch. We all stand on the shoulders of others."

"The question is whether or not what they've done here is taken the essence the heart of Paul Zendel's play," Kozinski said.

The most pointed questions for the defendants, Jonathan Zavin of Loeb & Loeb representing the filmmakers and Davis Wright Tremaine's Kelli Sager representing MacMillan Publishers, came from Wardlaw. Wardlaw called it a "kind of hubris" for a judge to think he or she has enough knowledge of filmmaking and theater to dismiss copying claims at such at early stage.

The circumstances that would warrant such a treatment are "very rare and I would say it should be limited to the most frivolous of cases," Wardlaw said.

Zavin, for his part, said that this was "not a close case." Zavin urged the panel not to establish a rule that would mean that virtually all copyright claims regarding expressive works move on to summary judgment. "Expert testimony is not going to change any of the elements" potentially protected by copyright, Zavin said. "Every piece of expression is different except there's a cleaning lady and an animal, which we acknowledge," Zavin said.

During his rebuttal time, Kozinski asked the panel, if they do revive the lawsuit, to assign it someone other than Anderson, whom Kozinski noted was his classmate at University of California at Los Angeles School of Law. "Please consider sending it back to a judge who has not made up his or her mind," Kozinski said.