Appeals court rejects artist's lawsuit against NBC's 'Heroes'

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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