Disney battles ghost of ‘Pirates’ suit
Disney is facing the potential revival of a copyright infringement suit accusing it of copying elements of the screenplay for the first “Pirates of the Caribbean” film.
The US Court of Appeals for the Ninth Circuit yesterday, July 7, heard oral arguments over whether courts should factor in unprotectable elements when judging whether to dismiss copyright infringement suits.
Screenwriters Lee Alfred and Ezequiel Martinez sued former collaborator Disney in 2017 at a Colorado federal court, accusing the film studio of taking elements from their screenplay “Red Hood”.
According to the screenwriters, those elements were recreated in “Pirates of the Caribbean: The Curse of the Black Pearl”, the first entry in the blockbuster film franchise.
The US District Court for the District of Colorado dismissed the case at the request of Disney, as the only similarities between the screenplays were “unprotectable” elements generic to pirate films (such as rum-drinking pirates).
The Colorado court applied the so-called “filtration test”, which filters out unprotectable elements when assessing the similarity between the films.
But lawyers for Alfred and Martinez want the Ninth Circuit to revive the case, on the grounds that the district court should have used the alternative “selection and arrangement” test, which takes into account unprotectable elements as part of a wider pattern.
Arguing for the plaintiffs, Steven Lowe, partner at Lowe & Associates, told the court that the plot and sequence of events in “Pirates of the Caribbean” track “almost identically” on to “Red Hood”, as if “Disney used the architecture of our work”.
Were the court to affirm the district court’s summary dismissal of his clients’ case, it would be placing “virtually impossible obstacles for screenwriters to recover for infringement,” Lowe argued.
Arguing for Disney, Melinda Eades LeMoine, partner at Munger, Tolles & Olson, said that the elements cited by the plaintiffs were “tropes” common to pirate movies and stories.
“The characters are inherently different,” LeMoine argued, despite surface similarities. The fact that both screenplays featured cocky, rum-drinking pirates did not give grounds to a copyright claim, she said.
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