Pirates of the Caribbean copyright lawsuit revived from the dead. ALFRED v. WALT DISNEY

Pirates of the Caribbean copyright lawsuit revived from the dead. ALFRED v. WALT DISNEY

A copyright is a set of exclusive rights granted to the creator of an original work of art when the art is fixed in a tangible form. Registering the work with the United States Copyright Office will strengthen the exclusive rights granted by copyright law, but is not necessary for a copyright to be granted. The creator of an original work of art is granted the exclusive right to copy distribute and sell the copyrighted work, among other things. If someone other than the copyright owner exercises one of the exclusive rights granted by copyright law, that is considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for infringement which has occurred.

To win a claim of copyright infringement a plaintiff must show they own a valid copyright, and that the defendant actually copied the work. Direct copying is proven by showing that an exact reproduction of the copyrighted work was made. Absent evidence of direct copying, proof of infringement involves proving that the defendant had access to the plaintiff’s work and that the two works are substantially similar. Under the doctrine of substantial similarity, a work can be found to infringe copyright even if the wording of text has been changed or visual or audible elements are altered.

The substantially similar test is intended to protect the main purpose of copyright law, ie the advancement of science and the useful arts. Frequently creators are inspired by the works of other creators. Drawing inspiration from an earlier work is not considered copyright infringement because copyright law protects the expression of ideas, not the ideas themselves. However there is a fine line between inspiration and imitation. If a new work is substantially similar to a prior work, then copyright infringement may have occurred. Proof of substantial similarity is satisfied by a two part test of extrinsic similarity and intrinsic similarity. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it alleges have been copied. Unprotectable elements such as idea, concepts and elements in the public domain are filtered out of the extrinsic test. The intrinsic test is an examination of an ordinary person’s subjective impression of the similarities between the two works, and is the exclusive province of the jury.

At different stages of a lawsuit, different burdens of proof apply.  In the United States a Plaintiff can file a lawsuit for just about anything, whether the lawsuit will survive a Defendant’s motion to dismiss depends on how the Plaintiff has plead their case.  The substantial similarity test is no different.  Case law helps clarify exactly how a Plaintiff must plead substantial similarity to survive a motion to dismiss.

ALFRED v. WALT DISNEY CO, 19-55669 (9th Cir. 2020) is an example of a case where the appeals court found that the Plaintiff plead substantial similarity sufficiently to survive a motion to dismiss.

This case centers on the film Pirates of the Caribbean. Plaintiffs wrote a screen play about a band of pirates and their adventures in 2000.  Defendant was provided with a copy of the screenplay and declined to purchase the film rights to the screenplay.  In 2003 Defendant released a film about pirates.  Plaintiffs sued Defendant for copyright infringement alleging that the film was substantially similar to the screen play.  Defendants motioned for dismal.

The District Court found that there were some similarities but dismissed the action because it concluded that many of the elements the two works share in common are unprotected generic, pirate-movie tropes.  The District Court applied only the extrinsic test and found that the the screen play and the film were not substantially similar as a matter of law.  Plaintiffs appealed this decision to the Court of Appeals for the 9th Circuit.

The 9th Circuit reversed the District Court’s dismissal because Plaintiff sufficiently alleged that there were substantial similarities between the works to survive Defendants’ motion to dismiss.  The 9th Circuit based this finding on the that both the film and the screen share common plot elements, share character with similar attributes and share some similarities in dialogue and tone.   While there are also differences between the film and the screen play, the similarities are more than de minimis.

The 9th Circuit held that additional evidence, such as expert testimony was necessary to determine whether the similarities identified by the Plaintiff are qualitatively significant.  Therefore the dismissal was reversed and the case remanded.

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