Skip to content

IP/Entertainment Case Law Updates

Alfred v. The Walt Disney Company

Ninth Circuit reverses dismissal of copyright infringement suit accusing Disney of “pirating” elements of plaintiffs’ screenplay for defendants’ film Pirates of the Caribbean: The Curse of the Black Pearl, finding selection and arrangement of similarities between them to be more than de minimis and sufficient to survive motion to dismiss. 

Writers Arthur Lee Alfred II and Ezequiel Martinez Jr. and their producer, Tova Laiter, appealed the district court’s dismissal of their copyright infringement suit alleging that The Walt Disney Co.’s film Pirates of the Caribbean: The Curse of the Black Pearl infringed their copyrighted screenplay on the grounds that the works were not substantially similar as a matter of law. 

Plaintiffs argued, and the Ninth Circuit agreed, that they alleged substantial similarities between the screenplay and the film sufficient to survive a motion to dismiss. For example, both the film and the screenplay begin with a prologue that takes place 10 years prior to the main story, introduce the main characters during a battle at gunpoint, involve treasure stories taking place on islands and in jewel-filled caves, include past stories of betrayal by the former first mate, contain fearful moments driven by skeleton crews, focus on the redemption of a young, rogue pirate, and share similarities in dialogue and tone. 

Though the district court also identified these similarities, it dismissed them as unprotectable pirate-movie tropes. The Ninth Circuit disagreed, noting that at this stage of litigation, it is often difficult to determine whether elements are protectable material, and that additional evidence such as expert testimony would help inform the question of substantial similarity, particularly because in this case, the works in question are almost 20 years old and the Pirates of the Caribbean franchise may itself have shaped what are now considered pirate-movie tropes.

The Ninth Circuit also discussed but rejected plaintiffs’ other arguments. First, it rejected as moot plaintiffs’ argument that the district court erred by failing to apply the inverse-ratio rule, because that doctrine was overruled by the court’s en banc ruling in Skidmore v. Led Zeppelin. Second, it rejected plaintiffs’ argument that the district court erred in failing to accord broad copyright protection to the screenplay, finding that the district court did not state that the screenplay was entitled to narrow copyright protection; nor did it require plaintiffs to show that the two works were virtually identical. Finally, the Ninth Circuit declined to address whether the district court abused its discretion in denying plaintiffs leave to amend their complaint, or in taking judicial notice of the Disney World theme park ride, noting that these issues are now moot given its reversal of the dismissal, and that plaintiffs may again request leave to amend their complaint and produce additional evidence on remand. 

Summary prepared by Linna Chen and Mariah Volk