Bloomberg Law
July 7, 2020, 9:06 PM

Vanquished ‘Pirates’ Lawsuit Could Return to Trouble Disney

Kyle Jahner
Kyle Jahner
IP Reporter

A copyright infringement lawsuit against Disney over its “Pirates of the Caribbean” movies could hinge on the Ninth Circuit’s view of how courts should weigh the arrangement of unprotectable elements early in a case.

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.

The plaintiffs hope to latch onto a recent Ninth Circuit decision reviving a lawsuit over “The Shape of Water” two weeks ago, and the broader trend of a rising bar for securing quick dismissals of copyright suits in the circuit. The Ninth Circuit has wrestled with when cases can be quickly dismissed as a matter of law, generating a handful of recent reversals. In “The Shape of Water” case, Zindel v. Fox Searchlight Pictures, the court revived the lawsuit because expert testimony could have provided important context.

Disney argued Zindel involved more overlap than exists between the “profoundly different” pirate works, where the district court found cursed ghost pirates and various pirate tropes were the only similarities amid numerous differences. But two members of the panel expressed discomfort with the ruling. U.S. Circuit Judge Eric F. Melgren said the ruling “troubled” him by seeming to resolve questions of fact more suited for a jury.

“Certainly if the allegation was that the Little Mermaid offended the protected element in this case because they were both involved in adventures at sea, that would be more susceptible to a Rule 12 dismissal,” Melgren said. “But when there’s a closer similarity of issues as we have here, that’s a case at which the procedural posture troubles me.”

Pirate Tales

Producer Tova Laiter sent Disney a screenplay written by Arthur Lee Alfred II and Ezequiel Martinez Jr., along with some artwork and a pitch reel, in 2000, according to their 2017 complaint. Disney declined to buy it. The first movie of the five-film Disney franchise, “The Curse of the Black Pearl,” debuted in 2003.

The district court applied the “filtration test” to remove unprotectable elements to see what was left but never applied a “selection and arrangement” test to consider the possibly protectable arrangement of unprotected elements, plaintiffs’ attorney, Steven T. Lowe of Lowe & Associates PC, said. Either test could reveal the substantial similarity required to make an infringement claim.

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.

LeMoine said the screenplay’s Davey Jones and the movies’ Jack Sparrow are entirely different protagonists once you strip the pirate tropes of a young, handsome, cocky, rum-drinking captain, adding that “you don’t often see shy, self-effacing, sober pirates.”

Zindel, by comparison, involved a much higher level of similarity: a cleaning person developing a relationship with an aquatic creature at a military base and helping it escape in a laundry basket, DeMoine said. A similar pattern isn’t found in the pirate works, just a collection of common elements, she said.

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.

The case is Arthur Alfred II v. The Walt Disney Co., 9th Cir. App., No. 19-55669, Oral Arguments 7/6/20.

To contact the reporter on this story: Kyle Jahner in Washington at

To contact the editors responsible for this story: Melissa B. Robinson at, Keith Perine at