Disney’s latest attempt to sink a lawsuit over the Pirates of the Caribbean franchise has been scuttled by a California federal judge.
In November 2017, A. Lee Alfred II and Ezequiel Martinez Jr. sued Disney over the franchise. The duo claims their spec script defied pirate topes by having Davy Jones be funny instead of fearsome, and their work was plundered to create Jack Sparrow after their producer sent it to Disney.
Disney seemed to have defeated the suit in May 2019 when District Court Judge Consuelo B. Marshall granted its motion to dismiss, finding the similar elements between the 2000 spec and 2003 film Pirates of the Caribbean: The Curse of the Black Pearl were largely unprotectable generic pirate fare — but in July 2020 the matter was revived by the 9th U.S. Circuit Court of appeals, which found “the screenplay shares sufficient similarities with the film to survive a motion to dismiss.”
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The appeals court found it premature to definitively determine the similar elements are unprotectable and additional evidence and expert testimony would help. States the opinion, “This would be particularly useful in this circumstance, where the works in question are almost twenty years old and the blockbuster Pirates of the Caribbean film franchise may itself have shaped what are now considered pirate-movie tropes.”
Alfred and Martinez filed an amended complaint, and now Marshall has denied Disney’s motion for summary judgment because of conflicting expert testimony.
While Disney had argued the writers’ expert is unfamiliar with the pirate genre and the legal analysis used to evaluate substantial similarity, notes Marshall, “These arguments go to the weight of Plaintiffs’ expert report, and the Court cannot weigh evidence on summary judgment.”
“Plaintiffs’ expert opines that the parties’ works are substantially similar and have original elements in common, whereas Defendant’s expert opines that the parties’ works are not substantially similar and common elements in the parties’ works are common in the pirate genre generally,” writes Marshall in the order, which is embedded below. “The opinions from the parties’ experts thus creates a genuine issue of material fact in dispute regarding whether the works are substantially similar.”
