Law360 (August 31, 2020, 8:58 PM EDT) — The Ninth Circuit has left in place a ruling that revived a copyright lawsuit claiming the Walt Disney Co. stole an unproduced screenplay to create the “Pirates of the Caribbean” movie franchise.

 

The en banc court on Friday denied the Hollywood powerhouse’s request to undo a three-judge panel’s July ruling that a trial judge acted too hastily when she tossed the suit.

 

Disney argued in August that the appellate court’s decision will lead to “an unnecessary quagmire of discovery” and that it violated long-standing precedent about the power of district courts to weed out bad copyright claims.

 

“Decisions such as this one … will chill district courts from resolving copyright cases on motions to dismiss, dragging courts and creators alike into an unnecessary quagmire of discovery and summary judgment,” Disney wrote in its petition for en banc review.

 

Screenwriters Ezequiel Martinez Jr. and Arthur Lee Alfred II said in their 2017 lawsuit that they pitched the studio in 2000 on a swashbuckling screenplay adapted from the famous Disney amusement park ride of the same name. Disney allegedly passed on the pitch, but then in 2003 launched the “Pirates” franchise, which has produced five films and grossed more than $4 billion.

 

Last year, a judge ruled that the similarities between the screenplay and Disney’s films were merely “generic, pirate-movie tropes” that cannot be protected by copyright law. But in July, the Ninth Circuit said that was too complex a conclusion for the judge to reach on her own.

 

“At this stage of the litigation, it is difficult to know whether such elements are indeed unprotectable material,” the court wrote in its opinion. “Additional evidence would help inform the question of substantial similarity, [and] expert testimony would aid in determining whether the similarities plaintiffs identify are qualitatively significant.”

 

The “Pirates” ruling was one of several recent Ninth Circuit decisions that ordered trial judges to wait longer before dismissing copyright cases. A similar ruling, over the Oscar-winning film “The Shape of Water,” also said expert testimony might be needed to make such decisions.

 

Disney raised similar concerns over that ruling, saying it would promote “protracted, meritless lawsuits.” But the en banc court refused to rehear it.

 

In its petition for rehearing, Disney argued that those recent rulings were a sharp divergence from previous precedents, which allowed judges to filter out questionable copyright claims rooted in common storytelling tropes.

 

“The panel’s decision conflicts with extensive circuit precedent,” Disney wrote. “It is part of a string of recent memorandum dispositions … that signal district courts cannot screen out generic elements and assess substantial similarity at the pleading stage.”

 

Counsel and representatives for the parties did not immediately respond to requests for comment.

 

The screenwriters are represented by Steven T. Lowe of Lowe & Associates.

 

The defendants are represented by Melinda LeMoine of Munger Tolles & Olson LLP.

 

The case is Alfred et al. v. The Walt Disney Co. et al., case number 19-55669, in the U.S. Court of Appeals for the Ninth Circuit.

 

— Additional reporting by Bill Donahue and Mike LaSusa. Editing by Haylee Pearl.