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The ‘Pirates of the Caribbean’ Lawsuit

Decoding the concept of ‘substantial similarity in the context of copyright infringement


To determine copyright infringement, the ‘substantial similarity test’ has routinely been employed by the US Courts. One such case is the case of Alfred v. Walt Disney Co., which having been disposed of by the District Court in 2019, has come back to life after the Ninth Circuit recently reversed the District Court’s judgement. The Ninth Circuit laid down some significant observations with regards to the substantial similarity test, which the author has discussed below.

‘Pirates of the Caribbean’ is a household name in the world of cinema. However, there have lately been apprehensions raised with regards to its originality. In 2019, Arthur Lee Alfred II, Ezequiel Martinez, Jr. and Tova Laiter, the creators of a ‘spec’ screenplay, filed a lawsuit against the Walt Disney Company.


They claimed that the defendants had infringed their copyright in the screenplay by releasing the movie ‘Pirates of the Caribbean: Curse of the Black Pearl’. While the district court turned down the plaintiff’s contentions by stating that the similarities were unprotectable pirate movie tropes, the Ninth Circuit, concluded that the degree of similarity was above the de-minimis level, and thereby sufficient to survive the motion to dismiss.


The ‘Substantial similarity’ test, explained in the context of Alfred


In order to win a claim against the defendant, the plaintiff would first have to prove that he owns the copyright in the concerned work. Once ownership is proved, he is required to furnish evidence regarding the defendant’s access to that work. ‘Copying’ is quintessential in determining infringement. Therefore, if the defendant is able to prove that his work is an outcome of his own intellectual labour, the degree of similarity between the two works would become irrelevant.


Once defendant access is proved, the plaintiff would have to prove that the defendant’s work bore a certain degree of resemblance with his work. In order to determine whether the two works are similar enough to constitute a case of infringement, the courts make use of the ‘substantial similarity test’. It is a two-part test, where both extrinsic and intrinsic similarity would have to be determined.


Extrinsic similarity


The extrinsic similarity is an objective test, where the plaintiff is required to showcase similarity based on certain specific criteria. It involves observing certain specific criteria such as the plot, characters, pace, setting, mood, dialogue and sequence of events. Unprotectable elements such as ideas, concepts and elements in the public domain are filtered out of this test.


In Alfred, the District Court admitted that the two works bore certain similarities. For instance, both works start with a prologue that takes place 10 years before the events of the main story, focus upon treasure stories on islands and caves, include moments of betrayal by the first mate, involve scary sequences driven by skeleton crews and share certain resemblances in dialogue and tone. However, the Court held that most of the similarities claimed by the plaintiff were unprotected and generic ideas, and therefore, it dismissed the plaintiff’s claim. The Ninth Circuit criticized the District Court’s judgement in this regard. It explained that filtering out ideas is often a difficult task, and therefore, expert testimony is incumbent in determining extrinsic similarity.


Intrinsic similarity


The intrinsic similarity test is a more subjective test, where there are no such distinctions drawn between protected and unprotected elements. This test is based solely on the interpretation of the reasonable man’s mind. If a person of ordinary prudence, after accessing both works, is convinced that the latter is a ‘dramatization’ or ‘picturization’ of the former, infringement shall be proved. Thus, in determining intrinsic similarity, analytic dissection and expert testimony must not be applied. This is another instance where the district court erred in passing its judgement.


While the district court took recourse to solely the extrinsic test, the Ninth Circuit applied the intrinsic test as well and found out that there were instances of similarity decipherable with ordinary prudence. It held that the degree of similarity between the two works was more than the de minimis level, and therefore, enough for the claim to survive the motion to dismiss.

This post has been written by Vedant Saxena 

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