U.S. Court Of Appeals Hears Arguments That Lawsuit Against Disney For 'Pirates' Shouldn't Have Been Dismissed

from the argh dept

Back in 2019, we wrote about a lawsuit filed against Disney by two writers that pitched a piratey movie to the company. The writers’ screenplay about Davey Jones, they said, was so similar to Disney’s Pirates of the Caribbean movies so as to constitute copyright infringement. Much of this appeared to stem from the fact that the two writers had pitched the screenplay to Disney a few years before the Pirates franchise began, but the similarities laid out in the lawsuit were classic idea/expression dichotomy stuff.

The writers and Laiter said the movies, like the screenplay, diverged from the traditional canon by portraying pirates as humorous, good men rather than terrifying brutes. They also claimed both works featured supernatural cursed, skull-faced pirates, and that actor Johnny Depp’s Captain Jack Sparrow character was substantially similar to the screenplay’s Davy Jones.

But the “single purported similarity” between the widely varying plots—cursed pirates—was an idea that flows naturally from a basic plot premise and therefore unprotectable, the judge said. The dark mood driven by pirate battles and sea monsters also stemmed naturally from the pirate premise, Judge Consuelo B. Marshall said.

And so the court dismissed the suit, laying out a reasoned argument that all of the similarities the plaintiffs had brought before the court were pirate tropes of the sort one would find in pretty much every pirate movie. Any minor deviations from those tropes, even if shared by both screenplays, were not protectable. Meanwhile, there were marked differences in the screenplay and characters, with one notable exception being that the plaintiff’s Davey Jones gives up pirating to work in an orphanage, while Disney’s Jack Sparrow very much does nothing of the sort.

Well, those writers appealed the decision and recently argued before the U.S. Court of Appeals that, basically, there are lots of other similarities that they forgot to mention in the first go around.

Creators of a pirate-themed screenplay argued Monday before the U.S. Court of Appeals for the Ninth Circuit that a lower court dismissal merely filtered unprotectable elements from the allegedly infringing movie franchise without considering their protectable arrangement. The appeals court panel seemed receptive to the idea that the case against Walt Disney Co. should have at least survived a quick dismissal by the U.S. District Court for the Central District of California.

Those creators are pointing to the recent ruling in the The Shape of Water case, which similarly was dismissed early on, only to be revived on appeal when it was argued that expert testimony during the trial could have made a difference in the outcome. But, as Disney has argued in response, that case contained far more allegations of similarity than exists here. That, according to the plaintiffs in this case, is because the court didn’t hear their new argument that these piratey tropes were protectable because of their specific combined arrangement.

U.S. Circuit Judge Bridget Shelton Bade noted that section and arrangement wasn’t mentioned in the decision and asked if it was argued. Lowe acknowledged the prior legal team was denied the chance to amend its complaint a second time to add it. Bade pushed back and said the court concluded the similarities were just pirate tropes “one would expect in any pirate movie.”

Lowe pointed to the opening brief, which laid out various alleged character, dialogue, plot, theme, and pacing similarities showing an architecture “identical for all intents and purposes” to the screenplay. He also said there are always “slight differences” between works, but that literary works were afforded “very thick protection.”

Disney attorney Melinda Eades LeMoine of Munger, Tolles & Olson LLP said the court didn’t err by skipping the arrangement analysis because it wasn’t presented—and wasn’t present—in the case. Many of the alleged similarities could be found in various pirate tales as well as Disney’s own Pirates of the Caribbean ride, which opened in 1967 at California’s Disneyland theme park and includes alleged similarities such as a port town, skeletons, and treasure, she said.

Hard as it may be to back Disney in a copyright lawsuit, its position makes sense. There are instances where an arrangement of unprotectable elements can qualify for copyright protection due to the originality of that arrangement, but nothing the plaintiffs point out here seems to move beyond a mashed together list of pirate tropes. That, combined with the stark differences that are present in the screenplay’s story and characters, really does put this back into the idea/expression dichotomy territory.

And, yet, it wouldn’t be terribly surprising to see the court decide that those are arguments best made at trial.

U.S. Circuit Judge Richard A. Paez said district courts can dismiss cases based on a lack of similarity, “But I think it’s difficult.” Not letting questions about arrangement and what elements were generic at least get to the summary judgment phase “just strikes me as odd,” he said.

“It does seem that you’ve got to be very careful when you do that, you’ve got to be sure. What you’re saying is there’s no plausible claim,” Paez said.

To be clear, this is the court hinting that it will err on the side of caution, not any sort of affirmation that the plaintiffs have an actual case. Still, it’s annoying that any creator, even Disney, would have to go through a trial over this sort of thing.

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Comments on “U.S. Court Of Appeals Hears Arguments That Lawsuit Against Disney For 'Pirates' Shouldn't Have Been Dismissed”

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Anonymous Coward says:

Anyone who has ridden The Pirates of the Caribbean ride saw so many of the inspirations for the movie that arguing there are similarities to a screenplay just seems to indicate the writers of the screenplay also rode the ride at some point.

PaulT (profile) says:

Re: Re: Re:

This is true, but looking at the actual complaint most of the issues were things that appeared in the actual ride (from memory, it’s a long time since I’ve been on the pre-movie versions of the ride). The skeletal pirates were certainly in the ride, and though I don’t recall if there was an explicit curse mentioned there it’s hardly a major leap to come up with that as a plot device to include that aspect.

The other accusations are just as wooly. The "good natured" pirate angle is not unique in cinematic history, and it’s almost a requirement if you’re going tell a family friendly story from the point of view of people within the pirate community.

The whole thing appears to hinge on similarities between Jack Sparrow and the screenplay’s Davy Jones, which I can’t account for without reading it. But, there appears to be marked differences, and it has to be said that most of the character’s appeal lies in the way Johnny Depp portrayed the character, not what was on the page.

Scary Devil Monastery (profile) says:

Well, classic disney...

It’s not exactly unheard of for Disney to make a movie ripped entirely from old folk tales, myths and legends only to then turn their cadre of legal vultures on anyone who later dares base any production from the same old folk tales, myths or legends.

That, folks, is the only way copyright can be linked to any definition of theft – stealing the rights of the public to use the stuff the public actually owns.

At least you can’t argue that Disney isn’t using copyright the way it was originally intended to be used.

Anon says:

Re: Well, classic disney...

Not exactly. For every Disney movie based on a classic tale, there are plenty of knock-offs. They just can’t look too much like the characters in the Disney version, nor can the plot changes match what Disney changes from the classic tale. I think Disney is realizing this, and has stopped at least using the title same as the classic. (I.e. "Frozen" not the "Ice Queen"). There are specific elements – the specific number of 7 dwarfs and their clever names are a Disney construct, so cannot be copied. IIRC the evil stepmother turning into a dragon is a Disney thing too.

Remember when Battlestar Galaxative first came out (not to be confused with the reboot) it was not long after Star Wars and Lucas Films tried to sue over elements like evil robots/star troopers, little fighter ships dogfighting while giant ship lurks in background, etc. – only to be shot down.

Scary Devil Monastery (profile) says:

Re: Re: Well, classic disney...

"They just can’t look too much like the characters in the Disney version…"

Given that there are only that many ways to make a stereotype or classical trope without becoming too subjectively similar…I mean, If you have seven dwarfs in a story (as there are in the original) just how would you alter them so Disney couldn’t tie you up in court for about a hundred thousand or more in legal bills?

I’d argue that ANY characterization close enough to automatically invoke the classic stereotype will appear to be close enough to the Disney version (or Tolkien version, or Rowling, etc) for an eager disney legal eagle to make the case. After which you can only hope and pray the judge is wise enough to spot the actual differences.

That’s the problem with copyright – it’s all subjective. Translated to the real world it’d be like you owning a blue Ford Mustang and because of that the law would often give you the right of way if you broke into and drove off with ANY Ford Mustang which looked similar enough.

And you’d get, in that example, automatic benefit of doubt when you claimed you thought the car you drove off in was similar enough to yours it was probably your right to do so.

"Remember when Battlestar Galaxative first came out (not to be confused with the reboot)…"

Yeah, but it’s also true that Kraftwerk won their case against another band which had included two seconds worth of industrial machine noise which was deemed identical to what they had on their own record. Copyright judgments are always completely subjective and you rely on the coin flip to tell you whether the judge will go "Seven dwarves and a witch? Guilty!" or "No, you’d need the witch to be dressed like that and the dwarves to be named in similar fashion".

Thad (profile) says:

Re: Well, classic disney...

It’s not exactly unheard of for Disney to make a movie ripped entirely from old folk tales, myths and legends only to then turn their cadre of legal vultures on anyone who later dares base any production from the same old folk tales, myths or legends.

That’s not what happened in this story, though I can understand how you reached that conclusion based on the opening paragraph — it’s not nearly as clear as it should be on the order of events and who sued whom.

This is a case where two writers pitched a screenplay about pirates, "ripped entirely from old folk tales, myths, and legends," as you say, Disney passed, and then a few years later made Pirates of the Caribbean, and the writers sued Disney for copyright infringement.

Disney hasn’t "turn[ed] their cadre of legal vultures on anyone". Disney is the defendant in this suit. And, painful though it may be to say, Disney is in the right this time.

Anon says:

Re: Steal

I disagree with this. Every large studio for decades has been wary of the "you stole my script!" routine. Some don’t want to listen to outside pitches; many have firewalls between the ones who view submissions and the in-house talent. Disney does in fact pay for the new stories, and as for the classics – they are (irony!) public domain. Note that the writer embellishments on a classic story are quite logically copyrightable. But as discussion about Star Wars (IV) and "the McGuffin" shows us, there are a limited number of stories and each one only differs in the details. (Upstairs-Downstairs, Gosford Park, Downton Abbey… ? Contagion and real life? Every Broadway musical? Things are often similar…)

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