In an unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit affirmed dismissal of a complaint for copyright infringement, unfair competition and unjust enrichment, finding that the plaintiff could not establish any substantial similarity between his graphic novels and the television series Heroes.  Wild v. NBC Universal, Case No. 11-56065 (9^th Cir., Feb. 28, 2013) (Callahan, J.; Ikuta, J.; Hurwitz, J.) (non-precedential).

In 2010, plaintiff and comic book artist Jazan Wild sued NBC Universal claiming that the fourth season of the NBC television seriesHeroes infringed Wild’s three-part graphic novel, Jazan Wild’s Carnival of Souls.  Specifically, Wild alleged that characters, plot lines and other visual elements of the carnival-themed season of Heroes were copied from his Souls novels.  Based on a lack of substantial similarity between Heroes and Souls, the district court dismissed the complaint without leave to amend and found all state law claims to be preempted by the Copyright Act.  Wild appealed

On appeal, the Ninth Circuit explained that a plaintiff must show (1) that the alleged infringer had access to the plaintiff’s work, and (2) that the infringing work is substantially similar to the plaintiff’s work.  The Court explained that in order to establish substantial similarity, a plaintiff must satisfy an extrinsic test, which compares objective elements of the relevant works, as well as an intrinsic test, which evaluates the similarity of the works at issue under an ordinary person’s subjective impressions.

Even adopting the assumption that NBC had access to Wild’s novels, the Ninth Circuit determined that Wild was unable to pass the first “extrinsic test,” and quoted the district court’s ruling with approval, stating 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.”

Wild also insisted that certain visual elements between the works were similar, and he compared screen shots from the television series to frames of his Souls novels, such as characters in a house of mirrors, a character approaching a carnival, and a view through a gun sight.  The Court concluded, however, that the compared visual images were unprotectable “stock scenes” or “scenes a faire” that would naturally appear in a story set in the context of a carnival.

Wild further argued that the district court abused its discretion by dismissing his initial complaint without leave to amend, claiming that he might be able to provide additional facts pertaining to NBC’s alleged access to his Souls graphic novels.  The Ninth Circuit emphasized that the district court had made its ruling on the assumption that NBC had access to the Souls work; therefore, any amendments to the complaint in this regard would have no impact on the Ninth Circuit’s analysis.  The Court therefore affirmed the dismissal of Wild’s complaint without leave to amend.