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Friday, July 24, 2020


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Ninth Circuit:

Screenplay Similar Enough to ‘Pirates’ Movie To Survive Disney’s Motion to Dismiss


By a MetNews Staff Writer


A lawsuit alleging that the Walt Disney film “Pirates of the Caribbean: Curse of the Black Pearl” infringed on an original screenplay has been revived by the Ninth U.S. Circuit Court of Appeals.

The copyright infringement suit had been dismissed without leave to amend by District Court Judge Consuelo B. Marshall of the Central District of California.

Screenwriters A. Lee Alfred II, Ezeqiel Martinez Jr., and Tova Laiter appealed Marshall’s decision. They argued that she overlooked substantial similarities between the script they presented to Disney in 2000 for possible development and the film Disney released in 2003, as the first in the “Pirates of the Caribbean” series.

“We agree with Plaintiffs that the screenplay shares sufficient similarities with the film to survive a motion to dismiss,” a three-judge panel—comprised of Ninth Circuit Judges Richard A. Paez and Bridget S. Bade, joined by District Court Judge Eric F. Melgren of the District of Kansas, sitting by designation—said in a memorandum opinion filed Wednesday.

Similarities Cited

The plaintiffs contended that their screenplay and Disney’s movie had in common use of “[s]upernatural ‘cursed’ pirates or ‘skull faced’ pirates.” Marshall commented in her May 13, 2019 dismissal order:

“The idea of cursed pirates is scenes-a-faire and unprotectable. Even if such an idea could be protectable, the Complaint alleges that the Screenplay incorporated  ‘the basic elements of the Pirates of the Caribbean ride.’…The  Disney theme park rides on which the Screenplay is based feature skeletal pirates  who speak, steer ships, and find treasure.”

She found that “the plot and sequence of events in Plaintiffs’ Screenplay and Defendants’ films are not substantially similar,” nor were the characters, themes, dialogue, mood, settings or pace. Attributes of characters, such as “cockiness, bravery, and drunkenness,” Marshall said, “are generic, non-distinct characteristics which are not protectable.”

The judge determined that “[a]t most, Plaintiffs have demonstrated random similarities scattered throughout the parties’ works.”

Ninth Circuit Opinion

The three-judge panel, in reversing, explained:

The Pirates of the Caribbean: Curse of the Black Pearl film and the screenplay both begin with a prologue that takes place ten years prior to the main story; introduce the main characters during a battle, at gunpoint; involve treasure stories that take place on islands and in jewel-filled caves; include past stories of betrayal by a former first mate; contain fearful moments driven by skeleton crews: focus on the redemption of a young, rogue pirate; and share some similarities in dialogue and tone. To be sure, there are striking differences between the two works, as well—but the selection and arrangement of the similarities between them is more than de minimis.”

The judges added:

“[A]t this stage of the litigation, it is difficult to know whether such elements are indeed] unprotectible material. Additional evidence would help inform the question of substantial similarity….As Plaintiffs note, expert testimony would aid in determining whether the similarities Plaintiffs identify are qualitatively significant….This would be particularly useful in this circumstance, where the works in question are almost twenty years old and the blockbuster Pirates of the Caribbean film franchise may itself have shaped what are now considered pirate-movie tropes.”

The case is Alfred v. The Walt Disney Company, 19-55669.


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