Appropriate for the pirate genre, citing the parties’ “dueling experts,” a District Court recently denied Disney’s motion for summary judgment in a copyright lawsuit in which the plaintiffs claimed the films in the popular “Pirates of the Caribbean” franchise infringed plaintiffs’ copyrighted screenplay. The Court ruled against the motion “because the parties’ expert opinions create a genuine issue of fact regarding whether the works are substantially similar.”
As a result, the case may be one of a small number of copyright infringement lawsuits involving feature films to reach a jury over many years. If this occurs, it will have more to do with the Ninth Circuit’s unpublished ruling in July 2020, Alfred v. Walt Disney Co., 821 F. App’x 727 (9th Cir. 2020), than the parties’ summary judgment papers.
Plaintiffs filed the appeal after the District Court dismissed their claim under Rule 12(b)(6) based upon its determination that the works in issue were not substantially similar as a matter of law. The Ninth Circuit reversed, faulting the District Court’s filtering out similarities between the works on the basis that they were “unprotected generic, pirate-movie tropes.” The Ninth Circuit ruled that at the pleading stage it was “difficult to know whether such elements [were] unprotectible” and that “expert testimony would aid in determining whether the similarities Plaintiffs identify are qualitatively significant.” Id.
The Ninth Circuit’s endorsement of the importance of expert testimony likely preordained the District Court’s denial of Disney’s motion for summary judgment, which Disney filed following expert discovery. Disney offered a variety of criticisms of the Plaintiffs’ expert’s determination that the works were “substantially similar.” In addition to offering its own expert’s report that they were not, Disney cited the Plaintiffs’ expert’s admissions that he formed his opinion without reviewing any works in the pirate genre, that he merely had “passing familiarity” with the genre, and that he was unfamiliar with the Ninth Circuit’s extrinsic test for determining substantial similarity. However, the District Court ruled that these shortcomings went “to the weight of the Plaintiffs’ expert report,” while noting that the Court “cannot weigh evidence on summary judgment.” DE 200 (Slip Op. at 5).
The Court also was not swayed by Disney’s argument that the conflicting expert reports did not preclude the Court from granting Disney’s motion. While acknowledging the existence of cases granting summary judgment notwithstanding the submission of conflicting expert reports, the District Court found those cases inapplicable, in large part because none involved proceedings in which there was a prior appellate ruling that “expert testimony would aid” in determining whether the literary works were substantially similar. See DE 200 (Slip Op. at 7).
Alfred II v. The Walt Disney Co., CV-18-8074 (C.D. Cal. Dec. 16, 2021).
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