[co-author: Adrian Anderson]*

The Central District of California recently sank a copyright infringement lawsuit against the Walt Disney Company’s Pirates of the Caribbean film franchise, finding that numerous elements of the Plaintiffs’ allegedly similar screenplay were either lifted directly from the eponymous ride at Disney’s theme parks or constituted unprotected scènes-à-faire common to all tales about pirates.

Disney’s film Pirates of the Caribbean: The Curse of the Black Pearl was an instant blockbuster when released in the summer of 2003 and spawned a franchise of four more feature films chronicling the adventures of Jack Sparrow, Captain Barbossa, and other swashbucklers. Disney developed the concept for the franchise from its wildly popular “Pirates of the Caribbean” theme park ride, which debuted at Disneyland in 1967. In August 2000, Disney had allegedly received – and turned down – Plaintiffs’ script for a film about the pirate Davey Jones and his quest for treasure on the high seas. Plaintiffs titled their screenplay “Pirates of the Caribbean.”

Plaintiffs sued Disney for multiple counts of copyright infringement in November 2017, claiming that Disney’s films copied their screenplay. On May 13, 2019, the court dismissed these claims with prejudice.

Applying the Ninth Circuit’s “extrinsic test” for determining substantial similarity, the court focused on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in the Disney films and the allegedly infringed script, comparing “not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.” Noting that “scenes-à-faire, or situations and incidents that flow necessarily or naturally from a basic plot premise cannot sustain a finding of infringement” and must be disregarded, the court found no “articulable similarities” between the dueling versions of Pirates of the Caribbean.

Notably, the court elaborated a veritable laundry list of elements within Disney’s films and Plaintiffs’ screenplay that were categorically scènes-à-faire and unprotected: “the idea of cursed pirates,” treasure maps, ghost pirates, the “undead,” ships flying black sails, skeletons, privateers, naval attacks, dark fog, the “pirate code,” ghosts, sea monsters, “pirates searching for treasure,” “cockiness, bravery, and drunkenness” among pirates, pirates who wear dark clothing and have facial hair, 10 year curses, themes of mutiny and betrayal that “flow naturally from the premise of pirates and ships,” and settings such as ships, port towns, and the Caribbean generally.

The court was quick to note that Plaintiffs admitted in their complaint that their screenplay incorporated “the basic elements of the Pirates of the Caribbean ride” and the court also found a majority of allegedly similar dialogue was “identical or substantially similar to portions of the theme song from Disney’s Pirates of the Caribbean theme park ride.”

All the generic elements, considered against the basic plot, mood, and thematic differences between Disney’s films and Plaintiffs’ screenplay (e.g., the protagonist in Plaintiffs’ screenplay, Davey Jones, seeks treasure, but gives up his quest to pursue romance and adopt children while Disney’s Jack Sparrow “never gives up piracy for love, children, or family”), prevented the court from finding substantial similarity. It remarked “[a]t most, Plaintiffs have demonstrated random similarities scattered throughout the parties’ works.”

Apart from taking readers to Tortuga and back, this decision illustrates the strength of the scènes-à-faire doctrine when applied to works based on common tropes and familiar folklore. Producing a work that comments on or subverts these archetypes can certainly help a copyright infringement plaintiff avoid a scènes-à-faire smack down. But plaintiffs should also never lead with the admission that their work is derivative of pre-existing work product from the entity they are trying to sue.

The case is Alfred v. The Walt Disney Co., No. 2:18-cv-08074-CBM-ASX (Order, C.D. Cal. May 13, 2019). An appeal of this decision is pending in the Ninth Circuit as No. 19-55669.

*Summer Associate

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