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Comics creator Jazan Wild on Monday asked the Ninth Circuit Court of Appeals to revive his $60 million copyright-infringement lawsuit against NBC Universal and the producers of Heroes, arguing that a trial judge shouldn’t have thrown out his claims nearly two years ago.
Wild (aka Jason Barnes) sued the network and Tim Kring’s Tailwind Productions in May 2010, accusing them of stealing the “carnival of lost souls and outcasts” depicted in the fourth season of the drama from his 2005-2006 comic series Jazan Wild’s Carnival of Souls. In his original complaint, he laid out numerous side-by-side comparisons that he contends prove the TV show’s traveling carnival is “virtually identical” to the one in his comic series.
But in May 2011, U.S. District Judge Gary Allen Feess determined that Heroes and Carnival of Souls “differ markedly in mood and setting, and weren’t substantially similar works, and therefore Wild had failed to prove his claim for copyright infringement. In Wild’s appeal, he insisted the judge erred by using too rigorous of a test to determine infringement, arguing that the wide availability of his comic meant he had to meet a lower standard of proof.
Law360 reports that in Monday’s arguments, Wild’s attorney Theodore F. Shiells said that if the court were to reinstate the lawsuit, he would amend the complaint to demonstrate NBC used artwork from Carnival of Souls on its storyboards for Heroes’ fourth season. Network lawyer Gail Migdal Title dismissed the storyboard argument, saying, “If, at the end of the day, the work that is being alleged to have been infringed is not substantially similar to plaintiff’s work, there is no infringement,” Title said. “Random similarities cannot form the basis of copyright infringement. That’s simply not the law. It’s not good policy.”
Wild recently made waves online when he sent cease-and-desist notices to book reviewers who posted excerpts from Melissa Marr’s unrelated Carnival of Souls, a young-adult fantasy novel at the center of his trademark-infringement lawsuit against HarperCollins.