Walt Disney Pictures has had its application for summary judgment on a copyright infringement claim by two screenwriters, over similarities between their work and the company’s Pirates of the Caribbean franchise, denied by a California Court.

Alfred and Martinez say that they submitted a screenplay called Pirates of the Caribbean to Disney via their producer in 2000, but that it was not returned to them for two years, by which time Pirates of the Caribbean: The Curse of the Black Pearl was already in production.

The pair claim that elements of their script defied conventional pirate tropes by making their main character funny, rather than feared, which is a distinguishing feature of the Captain Jack Sparrow character played by Johnny Depp in the franchise.

The claimants had previously suffered a set-back when a court granted Disney’s application to dismiss the claim on the basis of a finding that the parties’ works were not substantially similar as a matter of law.

That decision, however, was overturned on appeal, with the Appeal Court finding that the claimants’ screenplay ‘shares sufficient similarities with the film to survive a motion to dismiss’ and that it was difficult to know at such an early stage of the proceedings whether the elements the respective works shared were unprotectable material.

The Appeal Court concluded that ‘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 Court reversed the dismissal of the claim and sent it back to be heard by the court below. Both parties submitted expert reports on Disney’s application for summary judgment, in which Disney argued that both the claimants’ screenplay and the film Pirates of the Caribbean: The Curse of the Black Pearl are based on Disney’s pre-existing Pirates of the Caribbean theme park ride.

Notwithstanding Disney’s criticisms of the content of the claimants’ expert’s report, the Judge held that two conflicting opinions meant that there was ‘a genuine issue of material fact in dispute regarding whether the works are substantially similar’ and that any battle of experts must be left for the jury’s resolution.

Issued claims concerning alleged copyright infringement of scripts or concepts by film-makers are fairly unusual and, in English law, are frequently the subject of successful applications for summary judgment.  This US case however looks set to continue towards trial.  zoom-in will report on any developments.