By Robert B. Barnett Jr., J.D.
District court erred in dismissing the claims because at the pleading stage a copyright infringement plaintiff need only satisfy the "extrinsic test" for similarity.
The Ninth Circuit in an unpublished opinion has reversed a Los Angeles district court’s dismissal of a suit alleging that Walt Disney’s Pirates of the Caribbean: Curse of the Black Pearl infringed a Pirates of the Caribbean screenplay because, applying the extrinsic test for similarity, "the screenplay shares sufficient similarities with the film to survive a motion to dismiss." The lower court erred when it dismissed some similarities because they involved unprotectable pirate-movie tropes. At this early stage, it was difficult to tell which elements were unprotectable tropes, an analysis that additional evidence, including expert testimony, would help clarify. The Ninth Circuit also specifically stated that the lower court did not err when it refused to apply the inverse-ratio rule because that rule has been abrogated (Alfred v. The Walt Disney Co., July 22, 2020, per curiam).
A. Lee Alfred, II, Ezequiel Martinez, Jr., and Tova Laiter wrote a 111-page copyrighted screenplay called Pirates of the Caribbean. They sued Walt Disney, alleging that its movie Pirates of the Caribbean: Curse of the Black Pearl violated their copyright. The Los Angeles federal district court dismissed the suit, concluding that the two works were not substantially similar as a matter of law. The writers appealed.
Objective similarities. At the pleading stage, a copyright infringement plaintiff need only satisfy the "extrinsic test" for similarity, which asks whether the allegedly infringing work shares objective similarities of expressive elements with the copyrighted work. When evaluating whether a proper claim has been asserted, the courts must distinguish between protectable and unprotectable elements, looking for substantial similarity in the protectable elements.
The writers alleged the following similarities: (1) both begin with a prologue that takes place 10 years before the main story; (2) both introduce the main characters during a battle, at gunpoint; (3) both involve treasure stories that take place on islands and in jewel-filled caves; (4) both include past stories of betrayal by a former first mate; (5) both contain fearful moments driven by skeleton crews; (6) both focus on the redemption of a young, rogue pirate; and (7) both share similarities in dialogue and tone. While differences existed, these similarities, the appellate court said, were more than de minimis. In fact, these allegations were enough to establish objective similarities and survive the motion to dismiss.
The trial court erred when it dismissed some of the similarities because they involved unprotectable pirate-movie tropes. At this early stage, the Ninth Circuit said, distinguishing between protectable and unprotectable was difficult, particularly since the success of the Disney pirate-movie franchise presumably shaped what are now considered pirate-movie tropes. In fact, expert testimony and further discovery would be necessary to help the court distinguish between the two. As a result, the lower court erred when it dismissed the suit.
Inverse-ratio rule. The inverse ratio rule says that a lower standard of proof of substantial similarity should be applied when a high degree of access is shown. In its analysis, the lower court refused to apply the inverse-ratio rule, which the writers contended was reversible error. Since that decision, however, the Ninth Circuit has invalidated the inverse-ratio rule, concluding that it "defies logic" and creates uncertainty (Skidmore v. Led Zeppelin, 952 F.3d 1051, 1066 (9th Cir. 2020)). As a result, the decision whether the lower court erred when it refused to apply the rule had been mooted.
Broad copyright protection. The Ninth Circuit also rejected the writers’ contention that the lower court committed reversible error when it concluded that the screenplay was entitled to thin protection. The writers were correct, the appellate court acknowledged, that the idea of pirate films is entitled to broad copyright protection. The lower court, however, never said otherwise. Nowhere in the court’s opinion did it state that the screenplay was entitled to thin protection. As a result, no error existed on that ground.
The Ninth Circuit, therefore, reversed and remanded the lower court’s dismissal of the copyright infringement claim.
This case is No. 19-55669.
Attorneys: Steven T. Lowe (Lowe & Associates, PC) for Arthur Lee Alfred II and Ezequiel Martinez, Jr. Melinda Eades Lemoine (Munger, Tolles & Olson LLP) for The Walt Disney Co. and Disney Enterprises, Inc.
Companies: Walt Disney Co.; Disney Enterprises, Inc.
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