Suit claims Disney plundered ‘Pirates’ script

LEGAL ENTERTAINMENT

Many screenwriters dream that their original script will be turned into a movie or TV show. To get a script read by a producer, a screenwriter doesn't just send a copy in the mail. Not only would it be very unlikely for a producer to just pick up a package and spend the time to read it, the copy could get lost in the mail or picked up by someone else without ever knowing. It's important to protect the literary work to ensure that the creator will be credited and compensated for their work. But, what happens if it's read by someone, returned, and years later you see your story replicated in a movie or show? How can you prove that the overall expression of the story is yours? This is a difficult task and many have failed at it. Courts seem to have a difficult time finding the copied portions, if any, as protectable expression and dismiss man of them on that basis. Regardless of the difficulty and terrible track record, screenwriters continue to fight for protection of their literary works.

Just as any other creative work, the expression of the screenplay is protected by copyright. The real question arises as to what is the protectable expression of the screenplay rather than merely the unprotected ideas. In analyzing scripts, movies, TV shows or short films, the key test applied was developed by the 9th U.S. Circuit Court of Appeals in Sid and Marty Kofft Television v. McDonald's Corp. The test consists of the two-step extrinsic/intrinsic analysis. In applying the extrinsic test, the court in Krofft dissected each work into material categories such as plot, theme, setting, etc., and looked to see if there was substantial copying of unprotected ideas, which evidences actual copying. If there is copying, the court then asks a jury to apply the intrinsic test to the work as a whole and analyze whether to an ordinary person the copying extended into the protected expression. As demonstrated by the history of case law in this subject, this can be very difficult to prove.

In a recent case, Disney has found itself in another battle with writers for an alleged infringement of a screenplay in creating the well-known "Pirates of the Caribbean" franchise. Writers A. Lee Alfred II and Ezequiel Martinez Jr. filed a lawsuit Nov. 14 alleging that they submitted a screenplay titled "Pirates of the Spanish Main" to Disney just a couple years before the first movie was released. The complaint starts by explaining that the writers had been working for Disney on a movie called "Red Hood." They worked at Disney studios from October 1999 to October 2000. In August 2000, the writers, through their producer, submitted the final draft of "Pirates of the Spanish Main," along with a "sizzle reel" and original artwork for review by Disney producers. The producers agreed to take a look at the script, since Disney had considered producing a movie that gave a background story to the popular pirate amusement park ride. At the time of submission, Disney expressed that even though this story had been suggested before, they hadn't initiated any form of production at the time nor even had a script.

The complaint goes on to say that Disney didn't pass on their script until weeks later, which was over the general 1-2-week industry standard for review. On the same phone call, Disney also passed on the completion of "Red Hood," which the writers had already been working on for over a year at the studio. If that's not peculiar enough, the script was not returned to the writers until November 2002, over two years after Disney decided to pass. The first movie of the "Pirates of the Caribbean" franchise was released in July 2003.

The writers are claiming that Disney copied the themes, settings, plot and dialogues from their screenplay verbatim and that the copying has been going on throughout the entire franchise. Furthermore, and most interestingly, the writers claim the rights specific to the character of Captain Jack Sparrow, or "Davy Jones" as named in their original screenplay. Copyright protects the expression of characters, which is the identifiable traits of that specific character. A general pirate is an unprotected idea. However, the writers argue that prior to the character in their screenplay there was no such thing as a humorous pirate that was said to be a "good man." The complaint goes into a little history of the "pirate," emphasizing that pirates have always been depicted as "evil, loathsome, feared, and enemies of mankind." This analysis will be important in proving whether or not these characteristics are a new "expression" of a pirate. If the court finds that the idea of the pirate has been copied, infringement will depend on whether or not Captain Jack Sparrow's tendency to be a "good man" and having a sense of humor are identifiable traits that reach the level of protected expression.

This situation seems to have become a pattern for Disney. This lawsuit is just the latest of many that have been filed against Disney for infringement of a creative work, including one for the "Frozen" short, "Cars," and "Zootopia." Looking at the previous case law in infringement cases for screenplays, movies, TV shows and the like, the law is on Disney's side. In these types of cases, defendants generally file a motion to dismiss and most analyses don't move past the extrinsic test, or the judge mixes the two steps together by comparing the protectable expression to the dissected categories in step one rather than leaving that to a jury to review as a whole. The history of the case analyses has created much uncertainty for writers. But, even though the outcome of these types of lawsuits is unclear, writers and producers continue to file them in hope that something with change. In the case for "Pirates," only time will tell if this is just another dismissal or if the writers will 'scuttle those scallywags for all their booty and make them walk the plank. ARRRGGG!