Disney accused of being real pirate in Pirates of the Caribbean

On 13 May 2019 the District Court for the Central District of California dismissed with prejudice the claims of two scriptwriters in which they asserted that the Walt Disney Company’s Pirates of the Caribbean movie franchise infringed their copyright in an original spec screenplay. The court held that the plaintiffs could not prove unlawful appropriation because the works in question were not substantially similar under the objective extrinsic test.

The writers, Arthur Lee Alfred II and E Ezequiel Martinez Jr, had presented the screenplay entitled Pirates of the Caribbean, to Disney in August 2000. Disney subsequently informed them that it was going to pass on the project. The complaint alleged that Disney did not tell them that it already had another similar screenplay, although it did admit that the producer of the movies had told them in 2000 that the idea of a film based on the "Pirates of the Caribbean" ride had been suggested over the years and that Disney had considered making a film. The first movie, Pirates of the Caribbean: The Curse of the Black Pearl debuted in 2003 and led to a highly successful franchise with several Disney movies.

The plaintiffs originally filed suit in Colorado in 2017, but the case was transferred to California in 2018. Disney moved to dismiss for failure to state a claim upon which relief can be granted. To state a claim for copyright infringement, the plaintiffs had to plausibly allege that they owned a valid copyright in their work and that Disney copied a protected aspect of it. The latter requires both evidence of copying and unlawful appropriation. To establish unlawful appropriation, the similarities between the two works must be substantial and must involve protected elements of the plaintiffs’ work. Substantial similarity requires a two-part analysis: a subjective intrinsic test, typically left to a jury determination and a more objective extrinsic test, which focuses on articulable similarities between plot, themes, dialogue, mood, setting, pace, characters and sequence of events.

The court thus applied an objective comparison of the works under the extrinsic test, examining the extent of “articulable similarities”. First, the court noted that the single alleged similarity as to plot was supernatural cursed pirates or skull-faced pirates, which the court found to be scenes-à-faire. Scenes-à-faire, or situation and incidents that “flow necessarily or natural from a basic plot premise”, cannot be protected. Similarly, treasure maps, ghost pirates, the undead, the supernatural, ships flying black sails, skeletons, privateers, naval attacks, dark fog, the pirate code, ghosts and sea monsters are also familiar stock scenes and thus are unprotectable.

The court also held that the plots and sequence of events were not substantially similar. The plaintiffs’ screenplay was based on Davey Jones, his love interest Jane and a group of orphans named the Rascal Scoundrels who were all in pursuit of a map leading to treasure. Davey Jones battles with a pirate, Jack Nefarious, to gain a second half of the map, but ultimately gives up the treasure for Jane and the Rascal Scoundrels. In contrast, the plot of Disney’s first movie involves returning treasure to end a curse that Captain Barbarossa and his crew were put under. This plot line of breaking curses is carried through subsequent movies as well.

The court also conducted a detailed examination of the characters, themes, dialogue and pace and found no substantial similarity. And while the complaint asserted that the setting of a ghost ship and cavern were similar, it also admits that the plaintiffs' screenplay incorporated the basic elements of Disney’s “Pirates of the Caribbean” ride. Thus, the setting elements were unprotectable because they flow from the natural premise of a story based on the theme park ride.

The court concluded that, at best, the plaintiffs had demonstrated random similarities scattered throughout the parties’ works. Such “cobbled together” random similarities do not satisfy the extrinsic analysis test required for substantial similarity.