A previously dismissed lawsuit claiming an infringement of copyright on Disney’s “Pirates of the Caribbean” franchise has been reopened by the Ninth Circuit Court of Appeals, a move which could potentially lead to trouble for Disney.
According to Bloomberg Law, Producer Tova Laiter sent a screenplay to Disney back in 2000, which Disney declined to buy. The pitch, which was written by Arthur Lee Alfred II and Ezequiel Martinez Jr., was the basis of the lawsuit against Disney, as the owners claimed similarities between their work and “The Curse of the Black Pearl”, the first “Pirates” film which was released just three years later, in 2003.
The district court who handled this 2017 complaint applied the “filtration test” system to the screenplay, which removes unprotectable elements which can not be used to prove ownership. Here, this would be the generic “pirate movie” themes which one would expect to find in such a genre, which cannot be copyrighted due to their established existence in the public eye. What the court never conducted, however, was a “selection and arrangement” test, which would consider the potentially protectable arrangement of such elements, for instance, the way these pirate themes molded together to create the screenplay which Disney ultimately used. Despite Disney winning the original lawsuit on the basis that generic pirate life cannot be copyrighted, the creators of the pitched screenplay argued before the U.S. Court of Appeals for the Ninth Circuit earlier this month for the case’s revival and for these elements to be considered, particularly following the ruling of a similar case Zindel v. Fox Searchlight over the film “The Shape of Water”. U.S. Circuit Judge Eric F. Melgren claimed that he was ‘troubled’ by the case’s dismissal, due to the ‘closer similarity of issues’ present across both screenplays, which follow similar plot lines and tone.
As the case progresses, this could lead to a clearer weighing of the arrangement of unprotectable elements earlier in copyright infringement cases.
