On remand, district court denies Disney’s motion for summary judgment in copyright infringement action relating to Pirates of the Caribbean film franchise, holding that in light of dueling expert opinions, jury must determine whether plaintiffs’ screenplay and Disney’s films are substantially similar.
This case arises from the Pirates of the Caribbean film franchise, released by defendant Walt Disney Pictures. In 2000, plaintiffs Arthur Lee Alfred II and Ezequiel Martinez Jr. developed a screenplay titled Pirates of the Caribbean. Disney declined to purchase the screenplay from plaintiffs, and in 2003, released the first movie of its Pirates of the Caribbean franchise, Pirates of the Caribbean: The Curse of the Black Pearl. Disney has also operated a Pirates of the Caribbean theme park ride at Disneyland since 1967, which has been replicated at other Disney theme parks. In 2017, plaintiffs sued Disney, alleging that the Pirates of the Caribbean film franchise infringed their screenplay.
In 2019, the district court granted Disney’s motion to dismiss plaintiffs’ claims, finding that the parties’ works were not substantially similar as a matter of law. The court found that the only shared elements were unprotected tropes—or scenes à faire—that are generic to movies about pirates. (Read our summary of the district court’s decision here.) The Ninth Circuit reversed the district court’s decision, however, finding that the works “share[d] sufficient similarities . . . to survive a motion to dismiss” and that at such an early stage of the litigation it was difficult to determine which elements are protectable. The Ninth Circuit suggested that expert testimony would help determine the qualitative significance of any similarities on remand. (Read our summary of the Ninth Circuit’s decision here.) Plaintiffs then filed a first amended complaint asserting a single claim for copyright infringement and Disney moved for summary judgment.
The parties submitted dueling expert reports on the issue of substantial similarity. Plaintiffs’ expert opined that the screenplay and the film are substantially similar and have original elements in common. Meanwhile, Disney’s expert took the position that the screenplay and the film are not substantially similar and that any elements they do share are simply tropes common to the “pirate movie” genre.
Denying Disney’s motion for summary judgment, the district court held that the dueling expert reports created a genuine issue of material fact regarding the works’ substantial similarity, observing that “[t]his case boils down to a battle of the experts, and such a battle must be left for the jury’s resolution.” The court rejected Disney’s argument that district courts have previously granted summary judgment on the grounds of substantial similarity despite dueling expert reports, reasoning that in the cases on which Disney relied, plaintiffs’ expert reports were held to be inadmissible.
Separately, Disney argued that plaintiffs’ screenplay was merely an unauthorized derivative work based on Disney’s ride, precluding plaintiffs’ infringement claims. Plaintiffs argued that the issue was outside the scope of what the parties had agreed defendant would raise in its motion at this stage of the case, and the court agreed. And in any event, the court concluded, a genuine issue of disputed fact also exists as to whether plaintiffs’ screenplay copied Disney’s ride, thus precluding summary judgment on the grounds that plaintiffs’ screenplay is simply an unauthorized derivative work.