Disney Can’t ‘Shove Off’ This Pirate Copyright Lawsuit So Easily

Attribution @JasonPuddephatt

It looks like Disney not clear of trouble yet from this pirate lawsuit from Arthur Lee Alfred II and Ezequiel Martinez Jr., who are suing Disney for copyright infringement over their screenplay that they pitched to Disney back over 20 years ago.

The lawsuit rose from events that took place in 2000, when Tova Laiter, a producer, pitched a screenplay to Disney back in 2000, which Disney declined to buy. The screenplay was written by Alfred and Martinez Jr., and is the basis of the current lawsuit against Disney, as Alfred and Martinez believe that their work was copied in Disney’s “Pirates of the Caribbean: The Curse of the Black Pearl,” which was released in 2003 and is the first movie in the “Pirates of the Caribbean” film series.

The lawsuit, which was originally dismissed in the district court on the grounds that generic pirate life cannot be copyrighted, has been reinstated by the 9th Circuit.

Alfred and Martinez petitioned the 9th Circuit for an appeal, arguing that the district court never conducted a “selection and arrangement” test, which would consider the whether a generally unprotectible element of a created work (like the generic theme of a pirate movie) could potentially become a protectable work based on the arrangement of such elements.

The 9th Circuit agreed with Alfred and Martinez, stating that their screenplay “shares sufficient similarities with the [Curse of the Black Pearl] to survive [Disney’s] motion to dismiss.” The 9th Circuit panel of judges, which consisted of Judges Paez, Bade, and U.S. District Court Judge Eric F. Melgren, pointed out that even though there are striking differences between the two works, there are significant similarities between the two, including that both the movie and the screenplay:

  • 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 jewelfilled 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.

The Judges ruled that the lower district court was wrong for “failing to compare the original selection and arrangement of the unprotectible elements between the two works,” and that it was too early in the case to determine whether certain elements are “indeed unprotectible material”; if evidence were provided in the district court trial, it would have helped address “the question of substantial similarity.”

The case name is Arthur Alfred II et al. v. The Walt Disney Co. et al., and was brought for appeal in the U.S. Court of Appeals for the 9th Circuit in Pasadena, California. The case number is App., No. 19-55669 (the district court case number is 2:18-cv-08074). You can read the panel’s decision here, or alternatively, you can watch the video recording of the case here.

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