Plaintiff Jazan Wild brought copyright infringement and state law claims against defendants, entities involved in the production of the NBC television show Heroes, asserting that the fourth season of the series infringed his three-part graphic novel Jazan Wild’s Carnival of Souls. The district court took judicial notice of the two works and dismissed the complaint without leave to amend the complaint, finding a lack of substantial similarity in their protectable elements. The district court also dismissed plaintiff’s state law claims as pre-empted by the Copyright Act. On plaintiff’s appeal, the Ninth Circuit affirmed.
After an independent review of the two works, the appellate court agreed with the district court that “[o]ther than the presence of generic carnival elements and standard scenes that logically flow from those elements, the two works differ radically in their plot and storylines, their characters, the dialogue, the setting and themes, and the mood.” The appellate court also rejected plaintiff’s contention that the two works are visually similar, based on a comparison of a number of screen shots from Heroes with individual frames from Souls. The court concluded that these scenes (depictions of a character approaching a carnival, characters in the house of mirrors and a view through a gun sight) were unprotectable scenes a faire. Any remaining comparable elements were random similarities scattered throughout the works insufficient to support a claim of substantial similarity.
Plaintiff argued that the district court abused its discretion by dismissing his claims without leave to amend, asserting that he could allege additional facts concerning NBC’s alleged access to his graphic novel. The Ninth Circuit disagreed, finding that the district court’s analysis assumed that NBC’s access to the work and any amendment on the issue of access would have no impact.