U.S. Court Of Appeals Hears Arguments That Lawsuit Against Disney For 'Pirates' Shouldn't Have Been Dismissed
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Back in 2019, we wrote about a lawsuit filed against Disney by two writers that pitched a piratey movie to the company. The writers' screenplay about Davey Jones, they said, was so similar to Disney's Pirates of the Caribbean movies so as to constitute copyright infringement. Much of this appeared to stem from the fact that the two writers had pitched the screenplay to Disney a few years before the Pirates franchise began, but the similarities laid out in the lawsuit were classic idea/expression dichotomy stuff.The writers and Laiter said the movies, like the screenplay, diverged from the traditional canon by portraying pirates as humorous, good men rather than terrifying brutes. They also claimed both works featured supernatural cursed, skull-faced pirates, and that actor Johnny Depp’s Captain Jack Sparrow character was substantially similar to the screenplay’s Davy Jones.But the “single purported similarity” between the widely varying plots—cursed pirates—was an idea that flows naturally from a basic plot premise and therefore unprotectable, the judge said. The dark mood driven by pirate battles and sea monsters also stemmed naturally from the pirate premise, Judge Consuelo B. Marshall said. And so the court dismissed the suit, laying out a reasoned argument that all of the similarities the plaintiffs had brought before the court were pirate tropes of the sort one would find in pretty much every pirate movie. Any minor deviations from those tropes, even if shared by both screenplays, were not protectable. Meanwhile, there were marked differences in the screenplay and characters, with one notable exception being that the plaintiff's Davey Jones gives up pirating to work in an orphanage, while Disney's Jack Sparrow very much does nothing of the sort.Well, those writers appealed the decision and recently argued before the U.S. Court of Appeals that, basically, there are lots of other similarities that they forgot to mention in the first go around.Creators of a pirate-themed screenplay argued Monday before the U.S. Court of Appeals for the Ninth Circuit that a lower court dismissal merely filtered unprotectable elements from the allegedly infringing movie franchise without considering their protectable arrangement. The appeals court panel seemed receptive to the idea that the case against Walt Disney Co. should have at least survived a quick dismissal by the U.S. District Court for the Central District of California. Those creators are pointing to the recent ruling in the The Shape of Water case, which similarly was dismissed early on, only to be revived on appeal when it was argued that expert testimony during the trial could have made a difference in the outcome. But, as Disney has argued in response, that case contained far more allegations of similarity than exists here. That, according to the plaintiffs in this case, is because the court didn't hear their new argument that these piratey tropes were protectable because of their specific combined arrangement.U.S. Circuit Judge Bridget Shelton Bade noted that section and arrangement wasn’t mentioned in the decision and asked if it was argued. Lowe acknowledged the prior legal team was denied the chance to amend its complaint a second time to add it. Bade pushed back and said the court concluded the similarities were just pirate tropes “one would expect in any pirate movie.”Lowe pointed to the opening brief, which laid out various alleged character, dialogue, plot, theme, and pacing similarities showing an architecture “identical for all intents and purposes” to the screenplay. He also said there are always “slight differences” between works, but that literary works were afforded “very thick protection.”Disney attorney Melinda Eades LeMoine of Munger, Tolles & Olson LLP said the court didn’t err by skipping the arrangement analysis because it wasn’t presented—and wasn’t present—in the case. Many of the alleged similarities could be found in various pirate tales as well as Disney’s own Pirates of the Caribbean ride, which opened in 1967 at California’s Disneyland theme park and includes alleged similarities such as a port town, skeletons, and treasure, she said. Hard as it may be to back Disney in a copyright lawsuit, its position makes sense. There are instances where an arrangement of unprotectable elements can qualify for copyright protection due to the originality of that arrangement, but nothing the plaintiffs point out here seems to move beyond a mashed together list of pirate tropes. That, combined with the stark differences that are present in the screenplay's story and characters, really does put this back into the idea/expression dichotomy territory.And, yet, it wouldn't be terribly surprising to see the court decide that those are arguments best made at trial.U.S. Circuit Judge Richard A. Paez said district courts can dismiss cases based on a lack of similarity, “But I think it’s difficult.” Not letting questions about arrangement and what elements were generic at least get to the summary judgment phase “just strikes me as odd,” he said.“It does seem that you’ve got to be very careful when you do that, you’ve got to be sure. What you’re saying is there’s no plausible claim,” Paez said. To be clear, this is the court hinting that it will err on the side of caution, not any sort of affirmation that the plaintiffs have an actual case. Still, it's annoying that any creator, even Disney, would have to go through a trial over this sort of thing.
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posted at: 12:00am on 10-Jul-2020
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Colorado Government Dumps Qualified Immunity For Cops
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Since qualified immunity isn't actually a law -- but rather a Supreme Court construct -- states are under no obligation to adopt this doctrine and apply it to lawsuits against law enforcement officers. But most states have, with Iowa's top court being the latest to inflict this atrocity on the populace.The Supreme Court has fine tuned qualified immunity over the years, turning it into a speedy way to dispense with lawsuits brought by people whose rights have been violated. As long as the rights violation was committed in a novel way, cops are free to go. And as long as lower courts never have to address the question of whether or not a rights violation was committed, no new precedent is established that would put officers on notice that their rights violations are actually rights violations.Legislation has been introduced that would end qualified immunity at the federal level. There's basically no chance it will pass, not with Senator Mitch McConnell deciding what bills get voted on. That leaves it up to the states, which are free to eliminate this SCOTUS construct at any time.That's what has happened in Colorado. The governor has signed into law a rejection of law enforcement's favorite "get out of lawsuit free" card.In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court. The law says officers cannot raise qualified immunity as a defense to civil actions. It's part of a set of police reforms that includes mandated body cameras (with sanctions for failing to activate them), expanded reporting on officer-involved killings and officers who resign while under investigation, limits on force deployments during peaceful protests, and a ban on chokeholds. It also gives the state more options for decertifying officers, including the stripping of certification for failing to intervene when other officers are using unlawful force.But there's a lot of bad news to go along with this good news. First, ending qualified immunity at the state level does not prevent officers from using this defense in federal cases. Unfortunately for state residents, most civil rights lawsuits are handled at the federal level.The deterrent effect is further muted by the law's refusal to actually hold officers accountable for their own misconduct. Cops may no longer have qualified immunity to protect them in state lawsuits, but they'll still have the state shielding them from the consequences of their actions.The bill requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer's employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer's employer satisfies the whole judgment . Sure, some departments may fire a judgment-proof cop after they've been asked to open up their wallets a few times. But indemnification means cops can do bad things and expect someone else -- state taxpayers -- to pay for it. At the very most, an officer will be out $25,000. But collecting that judgment will be a rarity. Government employees know all the best ways to game a system and it will be the rare misbehaving cop that will have $25k laying around where litigants can find it.It's better than the nothing governments have done for years when asked to deal with systemic police misconduct. Acting like disappointed parents rather than responsible overseers of the public trust has turned many departments into receptacles for bad apples. Taking away a bad cop's favorite shield is a start. More states should do the same thing. Maybe then the Supreme Court might be willing to take another look at its enabling of rights violations and remove this blight from the federal landscape.
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posted at: 12:00am on 10-Jul-2020
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