Jack Sparrow, everyone’s favorite lovable scamp and star of the Pirates of the Caribbean movies is the subject of a new lawsuit, that claims he wasn’t Disney’s creation, but that of three other screenwriters.

As the story goes, Arthur Alfred, Ezequiel Martinez, Jr., and Tova Laiter, submitted a screenplay entitled Pirates of the Caribbean to Disney in August 2000. Disney passed on their script, but did not immediately return it to its authors, as is customary in the film industry, and instead supposedly copied some parts of it. Within the script was a character named “Davy Jones” who is allegedly a lot like Jack Sparrow. So, the plaintiffs argue that Disney read their script, copied the character and some other parts, and made its Pirates movies without getting permission from the plaintiffs. And Disney owes them for it.

In their complaint, Alfred, Martinez, and Laiter argue that the features that show that Jack Sparrow is a copy of Davy Jones is that both are humorous and “good guy[s]”. They write that before Davy Jones, pirates were “traditionally (and historically) evil, loathsome, feared and enemies of mankind … [P]irates in film, while handsome or good-looking, have not been depicted as having a sense of humor, until ‘Captain Jack Sparrow’ in the Pirates franchise.” Accordingly, they claim that they invented the idea of a funny pirate with Davy Jones, and Disney copied that idea in creating Jack Sparrow.

To be blunt, this argument is ridiculous. Apparently they’ve never seen Ice Pirates (1984)Hook (1991), or The Pirates of Penzance (film 1983; Gilbert and Sullivan operetta 1879!), all of which are about funny pirates. And those are just the first that come to mind! I’m sure that with about 5 minutes of research, I could find more funny pirates in film history that existed before Pirates of the Caribbean.

Moreover, even assuming that there had never been a funny pirate before Davy Jones (which is definitely not true), I find it hard to believe that, just because the plaintiffs came up with the idea for a funny pirate, Disney did anything wrong under copyright law by creating Jack Sparrow. First, it’s harder for characters to have copyright protection than you may realize. As the 9th Circuit writes in Rice v. Fox Broadcasting, 30 F.3d 1170, 1175: “While characters are ordinarily not afforded copyright protection … characters that are ‘especially distinctive’ or the ‘story being told’ receive protection apart from the copyrighted work” (internal citation omitted). I doubt a “funny pirate” is “especially distinctive” enough to receive copyright protection.

Second, there is a problem here because of copyright’s idea/expression dichotomy. See, e.g.Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). Copyright does not protect ideas; it protects the expression of those ideas. As an example, J.K. Rowling doesn’t own the idea of a boy wizard who goes to wizard school and fights evil wizards. That isn’t Harry Potter; it’s just a character sketch. However, once Rowling added the other elements of the character like his lightning bolt scar, that his parents died protecting him from Voldemort when he was a baby, so he was raised by his unmagical relatives, and that he goes to a secret school called Hogwarts where he learns magic from Dumbledore, Snape, and McGonagall, we start to see a copyright-protected character.

So, even if Disney took the idea of a funny pirate from the plaintiffs in this case, that doesn’t mean the film studio violated Alfred, Martinez, and Laiter’s copyright. Simply stated: funny pirate + good man does not equal Jack Sparrow. Jack Sparrow is the sum total of all the many character pieces that are in the Pirates movies.

Ultimately, I doubt this case will go very far. But I’m still going to pay attention to it, because it will be interesting to see what happens. Maybe Disney will settle, and we won’t hear about it again. Or maybe Disney will fight back, and we can see if the court agrees with me, or there is more to this story than meets the eye.

   

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