Robot 6

Appeals court rejects artist’s lawsuit against NBC’s ‘Heroes’

Exhibit 1B from Jazan Wild's complaint

Exhibit 1B from Jazan Wild’s complaint

The Ninth Circuit rejected a comic creator’s $60-million claim against NBC Universal and the producers of the television series Heroes, determining there was no evidence of copyright infringement.

Jazan 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.

However, in May 2011, a federal judge found 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 a three-judge appeals panel on Thursday upheld the dismissal, agreeing with the district court’s ruling that “other 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 story lines, their characters, the dialogue, the setting and themes, and the mood.”

The Ninth Circuit also rejected Wild’s assertion that the carnival on Heroes was visually similar to the one depicted in his comic books, determining that those elements aren’t are “stock scenes” or “scenes a faire” — situations that naturally flow from a basic premise — and therefore not subject to copyright protection.

“Any remaining comparable aspects of these scenes constitute nothing more than ‘random similarities scattered throughout the works’ that are insufficient to support a claim of substantial similarity,” the panel wrote.

Wild recently made waves online in September 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.

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Comments

11 Comments

Maybe our man should try creating something new rather than trying to sue everyone who touches on a fairly common plot idea that he happened to turn into a comic one time. Because, really, saying every story with a creepy carnival must have stolen the idea from his book is a bit like saying anybody who writes a love story must have stolen it from Romeo and Juliet (which, of course, Shakesy ripped off from Tristan and Isolde).

The guy should be thankful that his lawsuit was thrown out. I wouldn’t anything I’d ever created associated with the fourth season of Heroes in any way shape or form.

ok and what about this? predates this guys comics by a few decades or so…

http://en.wikipedia.org/wiki/Carnival_of_Souls

ThunderMonkey

March 1, 2013 at 8:31 am

Tim Kring should be sued for subjecting us to the travesty that was “Heroes.”

Took the words right out of my mouth Ed. Wild seems to have taken not just the setting, but even the title from the film the Carnival of Souls, which is one of the creepiest films ever made.

The “wide availability” of a comic no one in the world ever heard of until he started suing people, with a total of zero copies of comic book store shelves.

Rollo Tomassi

March 1, 2013 at 8:36 am

Oh man, that guy got ripped off!! Clearly he invented carnivals! He should sue Coney Island next.

And Heroes was awful. AW. FUL.

Heroes seasons 1 and 2 were actually pretty good. But I’d have drunk a gallon of antifreeze to blot out the crapfest it had spiraled into in season 3. And season 4 never happened. It was a different show entirely. These are not the droids you’re looking for.

As an articling student interested in practicing in copyright law, I allways sort of wonder about cases like this. Either counsel for this guy was horribly inept or was unethical in pursuing a case and persuading a client of its merits despite its clearly not having a chance in hell of succeeding. Stuff like this is copyright 101; there are buckets or jurisprudence of denied claims just like this one.

Marvel should file a lawsuit against NBC for ripping off their New Universe concept. The Eclipse granting powers was reminiscent of the White Event in the comics. Then the who premise of ordinary people discovering they have powers is the premise of the New Universe.

I miss that show.

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