GARY ALLEN FEESS, District Judge.
Heroes, a network television series that appeared on NBC for four seasons, chronicled the lives of several ordinary people who discovered that they possessed magical powers — examples include the ability to fly, the ability to travel through time, and the ability to control the thoughts of others. The series explored how these otherwise ordinary people reacted to the discovery, adapted to their new powers, incorporated their abilities into their daily lives, and how those powers isolated them from normally endowed human beings. Complex story lines involving these characters were developed over the first three seasons and carried over into the fourth. At the outset of the fourth season, Heroes introduced a new element, the Sullivan Brothers carnival whose members also possess special abilities. As the season progresses, the carnival clan, under the leadership of Samuel Sullivan, slowly becomes involved in the lives of the series' continuing characters who become aware of Samuel's actions and strive to understand his objectives. The presence of the carnival clan and its integration into the Heroes plot line gives rise to this lawsuit.
Plaintiff, Jazan Wild dba Carnival Comics ("Plaintiff") has authored a three-part "graphic novel," Carnival of Souls, a series of three comic books that according to the operative complaint, tells the story of a group "of damned souls that move between this world and the next, between reality and dreams." (First Amended Complaint ("FAC") ¶¶ 10-11.) Plaintiff, who claims that the carnival theme employed in Heroes copies protected elements of Carnival of Souls, brings suit against Defendants NBC Universal, Inc., NBC Studios, Inc., and Tailwind Productions, Inc. (collectively, "Defendants") for copyright infringement and for relief under various state law claims. In the FAC, Plaintiff cites to excerpts from the two works as evidence of their similarity. But those purported similarities are described at a level of abstraction that belies the merits of Plaintiff's copyright claim. Copyright protects the expression of ideas, not the ideas themselves. Thus, even assuming the existence of some similarity between the ideas underlying the two works, such similarity is not enough to make out a copyright claim where there is no similarity of expression.
With respect to the remaining state law claims, each seeks a recovery which is based on Defendants' alleged misappropriation of protected elements of the Carnival of Souls. Ninth Circuit case law teaches that a court must determine whether the state law claim encompasses the subject matter of copyright (e.g., the right to reproduce, distribute and display the work) and must contain an additional element that qualitatively transforms the action into something different than an infringement claim. Laws v. Sony Music Enter., Inc., 448 F.3d 1134, 1143-44 (9th Cir.2006). Here, as discussed below, even a casual reading of the state claims demonstrates that they are preempted because they essentially seek recovery for the same wrong encompassed by the Copyright Act.
Carnival of Souls,
Book 1 of the comic book series introduces and describes the growth and development of Jazan, a central character in the series, and raises the idea of dreams and their role in containing "the inner wild."
The plane encounters a violent storm and crashes into the ocean; Jazan's mother dies but he is washed ashore where he is sheltered by a streak of tigers. Jazan, the only survivor of the crash, develops an ability to talk to these tigers after his blood mixes with that of a wounded cub. The clown, who appears in the background as the narrator, explains that Jazan has died (apparently meant metaphorically) and has been replaced by "whatever was left inside" him. As the story progresses and Jazan lives with the tigers, he becomes more like them and participates in their raids on livestock maintained by local settlers. Having earned the enmity of the settlers, Jazan and his tiger cohorts are then pursued by an obsessed hunter. Periodically, during the pursuit, the clown appears in the background as if manipulating events to achieve his own ends. The clown haunts Jazan, who dreams of the carnival and his mother and the clown; he is tormented as he attempts to maintain his grasp on the line between fantasy and reality in debates with the voice of the clown. When driven to a frenzy by the clown's taunts, he and his tiger cohorts go on a rampage.
In the meantime, Jazan encounters the hunter's daughter, Tara. Although her father is his enemy, Jazan falls in love with her which transforms her father's rage into insanity, prompting him to threaten death to everything in his sight until Jazan has been captured and killed. In the midst of a war between Jazan and the hunter, the clown reappears and goads Jazan on to kill the hunter and those who would help him. Jazan tracks the hunter to his home where he nearly kills
As Jazan flees the scene of the killing, Tara discovers her father's body and reveals in her thoughts that she is pregnant with Jazan's child. Jazan is unaware of the child and forgets Tara as he comes upon the carnival making its way along the road. Jazan seeks out the carnival, and as he and his tiger brothers approach the carnival, they are ensnared in a net. Even so, Jazan concedes a feeling of relief as he is captured. As Jazan is filled with fantasies of the carnival and its meaning to him, the curtain is pulled back and we see that Jazan has been captured by the demonic clown, put in a cage bearing the legend "Tiger Boy" and taken away with the rest of the carnival freaks. As the story closes, he wonders whether or not he is "real" anymore.
In Book 2, the reader learns that the story of Jazan is really a sub-plot that is part of a larger struggle.
Book 2 begins with a full page depiction of the dead hunter lying outstretched on his tiger skin, but immediately the narrative turns in a different direction. A witch appears and reaches down the throat of the corpse and wrenches the hunter's heart from his body. Speaking to the heart, she resurrects the hunter's body
Jexter's fate is sealed one day as he and the prince are playing in the castle and come upon a room with which neither is familiar. In the room they see the skull of what appears to be a clown lying on the floor; Jexter picks it up and his mind mixes with that of the skull (which turns out to be the skull of a minor god that the witch had killed) causing him to have mysterious and disturbing dreams. The witch, displeased that the god, through Jexter, had turned on her and helped the king, tried unsuccessfully to persuade the king to kill Jexter. When that failed, the witch poisoned the king and threw the blame on Jexter and then, with the support of others, petitioned the prince, who had succeeded to the throne, to destroy Jexter. The prince turned king resisted for years because Jexter was his best friend and because Jexter's prophetic dreams had repeatedly saved the kingdom. However, when Jexter advised the king that he had a surprise for him, the witch convinced the king that it will be an evil surprise. But the evil surprise came when the king ordered Jexter beheaded. Jexter's head survives without a body and, in the form of a hideous, gravity-defying clown head, goes on a murderous, cannibalistic rampage.
Interwoven with this story, is a continuation of the Jazan narrative. In the opening scene of this portion of Book 2, the clown, reflecting on the feeling within the carnival, notes that something seems different and wonders if it is "the newcomers." In a not so subtle implicit response, the story shows that Jazan has proven difficult to handle. When he kills roadies who attempt to feed him, they chain him up and leave him without food. But despite pressure from members of the carnival, the clown refuses to allow Jazan to be killed. While chained, Jazan's spirit temporarily leaves his body and wanders into a house of mirrors, where Jazan sees a vision of his mother. Jazan's mother warns him that another mother, a dark mother, wants the carnival to die. As Jazan speaks to her, she is transformed into the clown who sends his spirit back to Jazan's caged body.
Toward the end of Book 2, the two stories merge. The witch reveals that the carnival's demonic clown master is Jexter and that he is using the carnival to collect "extreme little gods to try and flesh things out, make himself real again. His newest toy is Jazan."
Book 3 commences with the hunter handing over his ticket and entering the carnival. His presence is sensed by the fortune teller who has lost the ability to
Jazan's spirit eventually discovers that Tara is pregnant with his son and asks her to leave the carnival, which he describes as a place just for shadows, and tells her to raise their child in the real world. But as she leaves, the clown hands her two tickets, and an offer to come back any time. Book 3 ends with Jazan's son finding two admission tickets to the carnival in his mother's purse. The final frame depicts the clown inviting him to "climb aboard... and this time don't mind your mom!"
Heroes is a television series that spanned four seasons and depicted the lives of ordinary people who were "evolved humans" who possessed superpowers, and how these abilities affected them in their everyday lives.
Season Four continues story lines developed in earlier seasons as it tracks the lives of the following principal characters:
During the season, Hiro learns that he has a brain tumor, Peter obtains a new ability — the ability to heal — from a young boy who is later murdered by a small town police force. A new "special," Emma, is introduced during the season. She is deaf and sees rather than hears sounds; her musical ability has the power of drawing people to her as she plays the cello.
Season Four opens with a new element, a carnival clan led by Samuel Sullivan who is presiding over the funeral of his brother, Joseph. Samuel's eulogy suggests that there had been problems within the Sullivan family but that he and Joseph found family with the carnival where they were protected from a world that never understood or appreciated "what makes us different," which we quickly learn means people, like the main characters, who have special abilities. The carnival, he says, offers them the opportunity to be who they are and the chance for salvation, hope, and "redemption" (which is the title of Volume Five of the Heroes series). Samuel asserts that they will come "to our side, our family, and they will find their way home." At this point, the viewer does not know anything about Joseph, how or why he died, and why Samuel intends to seek out others to join his clan. The story of the carnival is interwoven with plot lines involving the main characters that have nothing to do with the carnival. These plot lines pick up where the prior season ended and continue to develop — notably the resolution of Sylar's story and his own personal redemption. The Court's discussion of the Season Four episodes focuses on those aspects of the series that relate to Samuel's story and ignores, for example, Sylar's conversion from murderous lunatic to helpful good guy.
Season Four introduces the Sullivan Brothers Carnival as a central element of the Heroes saga. Through a series of flashbacks, which are interwoven with a contemporary narrative, the viewer learns that Joseph and Samuel Sullivan are brothers who operate the carnival, which serves as a home for people with special abilities who have been unable to integrate into the world of ordinary people. But there is much more to the founding of the carnival than initially meets the eye.
Samuel, the younger Sullivan brother, was born in 1961 while Joseph and his mother were interned at Coyote Sands, a government operated relocation camp housing "specials." Dr. Chandar Suresh, a government scientist studying the internees, discovers that Samuel's powers are multiplied many times over by the presence of other evolved humans with special powers. He records his findings in work-papers and a film in which he reports on his discoveries. In his film, Dr. Suresh
Aware of his brother's potential power, Joseph conceals the information from Samuel and keeps him occupied in the carnival away from the rest of the world. For years, an ambitious and frustrated Samuel lived oblivious to his enormous potential. That secret is inadvertently revealed by Mohinder Suresh, Chandar Suresh's son. For much of his life, Mohinder has been obsessed with his father's work and, in Season Four, determines from his father's notebooks how to build a device (a kind of compass) that apparently points to the carnival's location, even though Mohinder is in India and the carnival is thousands of miles away in the United States. Insatiably curious over the fate of the child mentioned in his father's film, Mohinder travels to the United States to find him. The compass leads him to the carnival where he meets Joseph who reveals to Mohinder that he knows of Samuel's power and his potential to do great harm, even the potential to kill millions of people under the right circumstances. Joseph acknowledges Samuel's ambitious nature, explains that he has attempted to keep it in check, and insists, most emphatically, that Samuel never learn of his potential. Joseph demands that Mohinder leave immediately and urges him to destroy the film. Mohinder honors the request, but Samuel has overheard the conversation.
Samuel confronts Joseph who admits everything and concedes that he has contacted a government agent to take Samuel into custody. In a fit of rage, Samuel kills Joseph by telekinetically hurling a rock into Joseph's head. Although filled with regret and remorse over his brother's death, Samuel's consuming ambition pushes him forward. Samuel first goes about retrieving the film, but kills Mohinder when he discovers that Mohinder has destroyed it. Nevertheless, Samuel finds a way to obtain the film by coercing Hiro to travel back in time to the moments immediately before Mohinder set the film on fire. Although Hiro resisted, Samuel obtained Hiro's cooperation by holding hostage the love of Hiro's life — a Japanese-speaking country girl from Texas who works as a waitress in the Burnt Toast coffee shop. Hiro succeeds, retrieves the film, and delivers it to Samuel who learns the full truth of his potential powers.
Armed with this knowledge, and concealing his fratricide from the carnival clan, Samuel sets out on a secret mission to gather more specials to the carnival to increase his powers. Samuel finds the targets for his search through Lydia, on whose back he uses some sort of magic pen and ink which Lydia then turns into visual guidance for his endeavors.
In the meantime, as Samuel pursues these potential new members of the carnival clan, the viewer learns of his anger over his past mistreatment and of what Samuel is capable. For example, he attempts
At the same time, Samuel shows himself to be deceitful and manipulative. For example, to Claire he claims that Joseph was killed by one of Noah's colleagues as a means of seducing Claire to join the carnival. To members of the carnival, he blamed Edgar, the knife thrower, for Joseph's death after Edgar learns that Samuel has killed his brother. But despite his efforts to conceal the truth, some members of the company learn of his duplicity and evil plan, most notably Lydia who is taken to the scene of the crime by Hiro so that she can see for herself. When Lydia tells Samuel that the entire clan is afraid of him after he has destroyed the town, he claims remorse and promises to turn himself in. Noah and Lauren (a past colleague from the agency) plan an assassination, and Claire returns to confide in Lydia as to what is going to happen. But Samuel overhears and uses the plan as an opportunity to stage a failed assassination attempt to rouse the clan to a call to arms. In the process, he manages to capture Noah and to take him into custody, but Lauren escapes. In the hope of finally persuading Claire to commit herself to the carnival, Samuel forces Noah to reveal his memories in her presence in the House of Mirrors. When the effort fails, Samuel buries Noah and Claire in a trailer. However, because Lauren had escaped, she is able to call on Tracy who uses her powers to help them escape.
In the meantime, Samuel, with the aroused clan in tow, leaves for New York City where the carnival sets up for business in Central Park. He tells the clan only that they will be doing a very big show without revealing that what he plans is the death and destruction of thousands, perhaps millions, of New Yorkers. He forces Emma to play the cello to draw a large crowd to the event. Fortunately, Noah and Claire arrive just as Peter and Sylar appear at the carnival. Sylar frees Emma while Claire, supported by Edgar and Eli, reveals to the entire clan how Samuel killed his brother, how he set up Lydia's death, and what he has planned for the people of New York. In the meantime, Sylar rescues Emma (he is a changed man), Peter duels with Samuel, while a supercharged Hiro teleports everyone away from the carnival site. With the departure of the clan, Samuel becomes powerless. Claire, however, decides that it is time that the world learns the truth about specials.
Although a detailed study of the two works (as reflected in the foregoing recitation) demonstrates the radical differences between them, Plaintiff insists that the
(Id. ¶¶ 14-20; Exs. 1-10.)
These specific assertions, and other aspects and elements of the two works are discussed in detail below in light of controlling copyright precedent.
On a motion to dismiss brought pursuant to Rule 12(b)(6), a court must accept as true all factual allegations pleaded in the complaint, and construe those facts and draw all reasonable inferences therefrom "in the light most favorable to the nonmoving party." Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); see also Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1120-21 (9th Cir. 2007). A court may dismiss a complaint under Rule 12(b)(6) only if it appears beyond a doubt that the alleged facts, even if true, will not entitle the plaintiff to relief on the theories asserted. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-61, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Stoner, 502 F.3d at 1120-21; see also Cahill, 80 F.3d at 338. Moreover, the Supreme Court clarified in Ashcroft v. Iqbal that "only a complaint that states a plausible claim for relief survives a motion to dismiss.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `shown' — that the pleader is entitled to relief." 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).
The Court first considers whether to dismiss the copyright infringement claim. To state a claim for copyright infringement,
"The Ninth Circuit employs a two-part test for determining whether one work is substantially similar to another." Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir.1990) (citation omitted). Under this test, a plaintiff must establish "both substantial similarity of general ideas under the `extrinsic test' and substantial similarity of the protectable expression of those ideas under the `intrinsic test.'" Id. (citation omitted). If either test fails, the copyright claim fails.
The "intrinsic test" is left to the trier of fact and is "a subjective comparison that focuses on `whether the ordinary, reasonable audience' would find the works substantially similar in the `total concept and feel of the works.'" Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624 (9th Cir.2010) (quotation omitted). "The `extrinsic test' is an objective comparison of specific expressive elements. The test focuses on articulable similarities between the
Copyright law does not protect abstract ideas but rather the concrete expression of those ideas. Cavalier, 297 F.3d at 823. Thus, "[i]n applying the extrinsic test, this court compares, not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters." Funky Films, Inc. v. Time Warner Entm't. Co., L.P., 462 F.3d 1072, 1077 (9th Cir.2006) (internal quotation omitted). "[P]rotectable expression includes the specific details of an author's rendering of ideas." Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir.2002). However, scenes à faire, which flow naturally from generic plot-lines, are not protectable. Id. The Court "must take care to inquire only whether the protectable elements, standing alone, are substantially similar." Cavalier, 297 F.3d at 822 (quotation omitted) (emphasis in original). "In so doing, [the court] filter[s] out and
Case law illustrating the concept of "scenes a faire" reveals that two stories can bear remarkable similarity — indeed far more similarity than is present in this case — without a finding that one has violated the copyright of the other. Walker v. Time Life Films, Inc., provides a useful example. In that case, an author sought copyright protection for a number of elements that were depicted in his book and appeared in defendants' movie. 784 F.2d 44, 50 (2nd Cir.1986). In that case, the plaintiff highlighted to the court that both his book and defendants' film
Id. The court ultimately concluded that these similarities, though quite detailed, relate to uncopyrightable material. Id. Specifically, the court noted that
Id.
Here the application of the extrinsic test and the principles articulated in controlling case law demonstrate that the only similarities between the two works involve abstract ideas or "stock" themes and characters that are not protected by copyright. Nothing in Season Four of Heroes is substantially similar to protectible elements found in Plaintiff's graphic novel.
Plaintiff first asserts that the notion of a carnival theme has been misappropriated and infringes on his copyright. However, the use of a carnival as a setting, even a bizarre, dark or threatening carnival, is not an element that is original to Plaintiff's work. This concept was used almost 50 years ago, if not earlier, by Ray Bradbury in Something Wicked This Way Comes (Simon & Schuster) (1962) (novel). His novel was also made into a movie some years later. See, e.g., SOMETHING WICKED THIS WAY COMES (Disney 1983) (movie). The Bradbury novel has many of the elements used by Wild in Carnival of Souls — a mysterious, malevolent leader who serves as the story's antagonist; the use of the carnival to ensnare victims who make a Faustian bargain with the leader; a virtuous but conflicted protagonist; a witch; and a mirror maze.
But Plaintiff points to other elements as a basis for claiming copyright protection. For example, he asserts that the ability of the two carnivals to magically appear and disappear is an element of his story that has been misappropriated by Heroes. However, the claim that the two
When one looks more closely at the carnival themes and compares the two, the claim of infringement finds even less support. Plaintiff's broad assertion that the two works involve "carnivals of lost souls" (whatever that might mean) is belied by the specific manner in which the carnivals are presented and described in the two works. Carnival of Souls depicts a carnival that is actually a place of confinement whose members are held captive by the demonic clown. Hints appear at the close of Book 1 when Jazan and his tiger cohorts are trapped in a net and placed in a cage. The narrative at that point in the story, complete with garish illustrations, suggests that a close look at the carnival would reveal "blood on the tickets," "stilts holding up the world's tallest man, or the bruises on the strongman." That the carnival is an illusion that conceals a trap for the unwary is confirmed in Books 2 and 3. In Book 2 the witch who is the clown's nemesis explains that the clown's carnival is "garish and drained" because he has been "collecting his extreme little gods to try and flesh things out, make himself real again." The carnival's members feel safer as they stand together, "as if between them they could all form a
In contrast, the carnival in Heroes is a refuge for evolved humans who have been unable to integrate into normal society. The founders and operators of the carnival — Joseph and Samuel Sullivan — provide food, shelter, and acceptance to those who, because of their unique abilities, have been forced to hide their true nature from friends and family. Indeed, throughout the many episodes of Season Four, Samuel refers to the carnival's denizens as a family, and indeed there are from time to time scenes at a dining table where all gather to eat. Within the carnival family are other
This theme is also reflected in the opening scene of the season when, at Joseph's funeral and then as a background narrative to scenes depicting the continuing characters in the series, Samuel speaks of the carnival as a place that offers others like them salvation, hope and redemption. Although Samuel seeks to take advantage of their powers as his story reaches its climax, he manages to keep his clan together not with chains but with persuasion and deceit. In short, though important scenes of the two works are set in a carnival, the two carnivals bear little relationship to one another except for commonplace elements — ferris wheels, ticket takers, ringmaster, amusement booths and the like — that are unprotectible because they are associated with carnivals in general.
The basic plot line of the two stories have virtually nothing in common. Carnival of Souls is a surreal tale told through a series of three comic books that are short on dialog and logical plot development and long on lurid illustrations of the various story elements. Examples include a gravity-defying clown head cannibalizing an entire village; a tiger-man shredding the skin of a hunter while the hunter's trophy heads look on; a witch reaching down the throat of the dead hunter to extract his heart and set it beating again. In the end, Carnival of Souls is revealed as a duel between a witch and a demi-god who has been reincarnated as the clown who controls the carnival that is the subject of the work's title. This revelation comes early in Book 2 when the witch appears and reanimates the dead body of the hunter-adversary who was tracked and killed by Jazan. As the witch revives the corpse, she tells the hunter the story of Jexter, his fascination with a skull found in an isolated closet, and how his mind became mixed with the mind associated with the skull — the mind of a minor god whom she had killed. The reader learns that the god assumed the form of Jexter, and that the witch attempted to have Jexter killed by persuading the king that he should be beheaded. That turned out to be a tragic mistake because, the head, once freed from Jexter's body, becomes a demonic, murderous clown head that attacks the witch and kills an entire village. The witch survives and seeks revenge through the reanimated hunter. Book 3 tells how the hunter kills carnivalgoers, kills Jazan, intends to kill even his own daughter, before confronting the clown. The clown uses Jazan, who has been reanimated, to attempt to kill the hunter, but the witch appears and reclaims the hunter who she brought back to life. The fortune-teller warns that the witch is too strong to be killed, and she flies off with her prize.
The overall plot line of Heroes bears no relationship to the story of Jazan and his role as a pawn in the continuing struggle between the witch and her demi-god adversary, and is not told in the exaggerated, surreal manner employed in Carnival of Souls. Rather, although Heroes may be viewed as fantasy or science fiction, its characters are real people, albeit with extraordinary abilities, existing in the real world confronting the problems that real people encounter in everyday life. In Season Four of Heroes, we learn the story of Samuel, a special who is born with telekinesis
Plaintiff claims as a protectible element that the two stories depict a young character who receives a prophecy that changes their lives. According to Plaintiff, they develop "special abilities" that lead to their being sought out by the carnival years later. The contention addresses the plots abstractly and ignores the requirement that the Court focus on the expression of the idea in applying the extrinsic test.
Through this abstraction, Plaintiff seriously mischaracterizes the events in the two stories and their significance to the plot development. Carnival of Souls contains a line in Book 1 in which the young Jazan, who is visiting the carnival with his mother, tells the clown, "I want to live in a carnival
Heroes, on the other hand, actually contains a story line involving a prophecy and a character with a "special ability." In the first episode of the season, Hiro discovers that he is suffering from a brain tumor and may soon die. He traces his diagnosis to a fortune teller's prophecy, given to him at a carnival fourteen years earlier, that he would one day become a powerful hero. His friend Ando urges him to return to the scene of the prophecy and take steps to change (and save) his life. While this is happening, Samuel, with the help of Lydia, learns who Hiro is and somehow knows (and perhaps engineers) Hiro's time travel back to the moment before he has received the prophecy. But the fortune teller is never shown and the prophecy bears little relationship to the thrust of the story, amounting to little more than a plot device to bring Samuel and Hiro together. As the story develops, the viewer learns that Hiro's time traveling ability is essential to Samuel's ultimate objectives. The prophecy, therefore, doesn't foreshadow anything. The only thing that the two works have in common is that something happened at a carnival that was connected in some way to a future event. That is not enough to establish substantial similarity.
Plaintiff alleges that the two carnivals involve "dark leaders" who recruit new members to make his carnival more powerful. That is not entirely accurate and again, through abstraction, obfuscates the radical differences in the two works' expression of the general idea of adding members to the carnival. As indicated above, in Carnival of Souls, the demonic clown lures, entraps, and ultimately imprisons the carnival members for all eternity in an effort to regain powers that the witch has taken from him. She explains to the hunter that "he's been collecting his extreme little gods to try and flesh things out, make himself real again." Samuel recruits new members because he understands that his own powers will be enhanced by their presence, but without entrapping the members, who come and go as they please. Indeed, his effort to recruit the series' permanent characters has mixed results. Moreover, while he has personal ambitions that motivate his actions, he also seeks to earn the respect of the normal world for all members of the carnival, not just for himself. In short, Samuel is a subtle and nuanced character; the clown is a grotesque caricature. Thus, when the abstract notion of adding members to the respective carnivals is clothed with expression, one readily sees that the two works convey the idea in radically different ways. The two expressions cannot be described as "substantially similar" under the extrinsic test.
Plaintiff contends that the two works contain a sequence in which a murder suspect runs through a remote wooded area while being chased by an angry mob and finds refuge in the carnival which disappears before the mob locates the fleeing suspect. First, the idea of a murder suspect or some other character being chased by an angry mob is so common as to require little comment. But here Plaintiff contends that the two fleeing suspects were saved by a disappearing carnival. Those elements might be substantially similar if they existed in both works, but they don't. Jazan and his tiger cohorts are pursued by the obsessed hunter, but they always escape and do so without being rescued by the carnival. Eventually, Jazan turns the hunter into his prey and believes that he has murdered him, but he is not chased from the scene of the murder by anyone, angry mob or otherwise. He appears to fly above a group of native servants who stare angrily at him as he roars in defiance, but it is not at all clear that he is being pursued.
Heroes presents a radical departure on the "chased by a mob" scene and requires some explanation. Nathan, who is really making use of Sylar's body, discovers that
In short, there is nothing about Sylar's capture, interrogation, pursuit and escape that bear the slightest resemblance to any events in Carnival of Souls.
Plaintiff contends that the plots of the two works include a scene where a carney or Hero has nightmarish visions and awakes in a panicked state. It is not entirely clear what scenes are being compared. Book 1 of Carnival of Souls includes a lengthy sequence in which the clown is depicted as a kind of narrator who speaks directly to Jazan tantalizing him with visions of his mother and goading him into acts of violence. Jazan ponders his ability to maintain the line between reality and fantasy. Book 2 has another dream sequence in which Jexter, having taken possession of the clown skull (and it having taken possession of him), suffers nightmares of "gaudy lights, screeching sounds and all manner of monster
In Heroes, Sylar, who is now inhabiting his body again (but from time to time thinks that his name is Nathan), spends a day in the carnival where Samuel, unaware that Sylar's body has been used to recreate the deceased Nathan, attempts to bring Sylar's memories back to consciousness. He does this by sending Sylar to the house of mirrors which reveals events from Sylar's past and by concocting a confrontation between Sylar and a police officer who was involved in the earlier pursuit. Sylar is horrified by his murderous past, and when he fails to kill the police officer, Edgar the knife thrower finishes the job. Samuel is undeterred and puts Sylar through a ritual (a baptismal) and provides him with sexual favors offered up by Lydia. After spending some time in the carnival, Sylar is shown awaking from troubling dreams, but dreams about his (or Nathan's) past, not dreams about the carnival. Indeed, he wakes up in the form of Nathan, who knows nothing of the carnival, and though he has no idea of where he is, he appears puzzled rather than panicked. To avoid contact with anyone in the carnival, he uses his power to fly away.
Neither of the dream sequences in Carnival of Souls bears any resemblance to the complex series of events beginning with "Sylar's" arrival at the carnival and ending with "Nathan's" abrupt departure after he awakens from his dream state.
In Exhibits 8 and 9, Plaintiff contends that the two stories depict a hunter attacking the carnivals to prevent them from gaining more power; he also contends that the depiction of a scene through a telescopic rifle sight shows the infringement of a protected element.
However, the scenes used to prove the attack by a hunter on the carnival for the purpose of demonstrating similarity are misleading. In Exhibit 8, the scene from Carnival of Souls does not depict the hunter attacking the carnival, but rather a scene in which a hunter is pursuing tigers while Jazan and his mother are aloft in an airplane. The scene occurs early in Book 1 and has nothing to do with the carnival. Likewise, the scene from Carnival of Souls in Exhibit 9 is also from Book 1 and obviously depicts the hunter's effort to shoot Jazan who is embracing the hunter's daughter. Again, this has nothing to do with the hunter's later attack on the carnival after his resurrection by the witch.
It appears that Plaintiff would like to compare the scenes because both involve hunters who have their prey literally "in their sights." But the depiction of a scene through a telescopic rifle sight is a very commonplace element found in many works. For example, such scenes appear repeatedly in movies about spies and assassins; the Bourne movies used the device on more than one occasion.
For these reasons, the contentions that accompany Exhibits 8 and 9 of the operative complaint fail to show any substantial similarity between the works.
Plaintiff contends that the two works involve a hunter's daughter who is present "during the attack." With respect to Carnival of Souls, the Court assumes this to mean the resurrected hunter's attack on the clown and his carnival as the witch seeks dominance over the clown. After the hunter kills Jazan, the hunter's daughter magically appears at the scene asking "What am I doing here?" Her father explains that the witch's power has brought her to the carnival so that her father might kill her too since she is carrying Jazan's child. The daughter submits, with these words: "If Jazan is dead, you might as well kill me! I have no love left for you or life!" But before the deed is done, Jazan returns from the dead to save her. Jazan and the hunter fight to the semi-death, but because the hunter was brought back to life by the witch outside the carnival, he cannot be taken from the witch.
In Heroes, Claire has been persuaded by Samuel to visit the carnival to determine for herself whether she should join Samuel's clan. Claire eventually learns that Samuel killed his brother, and that he is devising an evil plan of unknown dimension. Claire returns to her daily life and discovers that Noah has learned of Samuel's crimes and is planning on "taking him out." She knows Samuel is evil, but because she fears for the lives and well-being of the other carnival members, she returns. She confides in Lydia and asks her to persuade Samuel to surrender to the authorities. Samuel overhears and they talk; Lydia urges Samuel to listen to Claire. Samuel feigns remorse but secretly plans to foil the assassination attempt and to use the plot to regain the trust, confidence and compliance of the carnival's members. Claire, without knowledge of Samuel's duplicity, then attempts to negotiate (via cell phone) with her father for Samuel's surrender. Samuel then has an accomplice open fire on the group; Samuel and Claire are wounded, and Lydia is killed.
Plaintiff contends that both works end with the destruction of the carnivals. (FAC, ¶ 20.) This assertion makes a number of assumptions about the works that are not actually depicted. For example, in Heroes, Samuel's powers have been taken from him as the carnival clan is spirited away, but the tents, rides, booths, and wagons are still present and, for all anyone knows, the clan will reassemble after Samuel has been taken away. In Carnival of Souls, there has been a terrific battle, but it ends with the witch and the hunter being driven off and Jazan still in the clown's custody. Indeed, the clown reminds Jazan that he can't leave because he has been killed on the carnival's grounds. Jazan warns Tara that she should never return, while the clown hands her two tickets to get back in with the offer that "you and the kid come back any time." It strongly suggests that the carnival survived the hunter's assault. That is confirmed years later when Tara discovers that she can't rid herself of the tickets given her by the clown; the last panel shows the clown speaking as if to her (and Jazan's) son, "climb
To establish a claim of substantial similarity based on dialogue, a plaintiff must establish the "extended similarity of dialogue." Olson v. Nat'l Broad., Co., 855 F.2d 1446, 1450 (9th Cir.1988). Ordinary words and phrases are not entitled to copyright protection, nor are "phrases or expressions conveying an idea typically expressed in a limited number of stereotyped fashions." Narell v. Freeman, 872 F.2d 907, 911-12 (9th Cir.1989). Plaintiff avoids dealing with the lack of any similarity in dialog by asserting, in cursory fashion, that in the first two episodes "even the dialogue is similar" to that found in Carnival of Souls. This assertion is cursory because even a casual comparison of the two works demonstrates its absurdity.
The dialog, such as it is, from Carnival of Souls, is extremely limited, simplistic and cliche-ridden. It is, after all, a comic book. The clown is given to saying things such as "sorry, lost my head" after terrorizing a little girl by removing it from his body. By comparison, the dialog in Heroes is detailed, complex, and relatively sophisticated and bears no resemblance to anything that appears in Plaintiff's work. Plaintiff points to a single concrete comparison — Jazan the tiger boy sees his mother in a house of mirrors and utters the word "Mother" twice as the clown torments him. (See FAC, Exs. 3A and 3B.)
Heroes depicts numerous characters, almost none of whom have any counterpart in Carnival of Souls. It appears, however, that Plaintiff contends that the leaders of the two carnivals are substantially similar. He describes them as "dark leaders" who seek to make their carnivals more powerful. Again, through the use of abstraction, Plaintiff obscures the radical differences between the two characters.
As discussed in detail above, in Carnival of Souls, the carnival's leader is a clown; or more particularly a gravity-defying, cannibalistic clown head that is very loosely attached to a clown body for appearance's sake. The clown is an evil, demonic, nightmarish figure whose sole objective is to capture and enslave the souls of his victims. There is nothing subtle or sophisticated about the clown. He is a garishly drawn, single-minded, provocateur, who is persistent in the pursuit of his prey. To the clown, death and destruction are to be glorified; he finds amusement in acts of grotesque violence and the suffering of his captives.
Samuel, on the other hand, is a complex, conflicted human being with a special power. Denied acceptance and recognition in his youth, the ambitious Samuel finds himself feeling thwarted as a member of the obscure Sullivan Brothers carnival. But when he learns of the true nature of his power, he sets out to use those powers to earn respect for the group. But along the way he becomes increasingly compromised as he gives vent to his anger and uses his powers for destructive ends which even includes the killing of his brother during an angry confrontation. What might have been an honorable objective — achieving respect for people with special abilities — becomes corrupted into a desire to engender fear by killing perhaps thousands of people as the carnival sets up in Central Park in the heart of New York City. Though in the end Samuel may have planned to do unimaginable harm, the expression of his complex and conflicted nature, his feelings for his carnival clan, and his ultimate descent into near madness are presented in a way that bears no relationship to the bizarre comic book clown of Carnival of Souls.
Other characters are briefly mentioned in the complaint. The Court addresses these characters briefly below.
Witch Doctor (Exs. 5 A and 5B): For example, the operative complaint asserts that the stories are substantially similar because each contains a Jamaican voodoo witch doctor with dreadlocks. In Heroes, a medium of some sort (see FAC,
Fortune Tellers: Plaintiff compares Lydia with the fortune teller from Books 2 and 3 of Carnival of Souls. Both are described as being able to see the future and warning that a hunter is coming to attack the carnival. This is actually incorrect. Lydia is less a fortune teller and more an intelligence source. She knows things which are depicted on her back when Samuel touches it with a pen dipped in ink. What she knows involves events in the present, not what is going to happen in the future. More to the point, Lydia never warns Samuel that a "hunter" is coming to attack the carnival. She informs him of Noah's interest in the carnival, and, when the time comes, Claire actually informs Lydia that her father is coming to the carnival either to take Samuel into custody or to assassinate him. Through Samuel's duplicity, Lydia is shot to death to prevent her from telling what she knows about the death of Joseph. Wild's fortune teller is depicted more stereotypically and plays a different role. Through her crystal ball she sees Jazan's struggles and a "storm" coming. But when the storm arrives she is unable to see it until the hunter is among them and chaos ensues. Jazan maims the hunter, but when he threatens to fight the witch the fortune teller warns him that she is too strong. But as a prophet, she is a dramatic failure.
Evil Character in House of Mirrors (Exhibits 4A and 4B): The discussion above notes that Plaintiff compared the hunter to Noah Bennett, who he classifies as a "hunter" in the Heroes saga. Here Plaintiff changes gears and compares the hunter to Sylar as a pretext for claiming that the scenes in Exhibits 4A and 4B are similar.
The almost complete lack of parallel characters strongly suggests, without any further analysis, that the works lack substantial similarity. Benay, 607 F.3d at 626 et. seq; see also Olson, 855 F.2d at 1451-53 (9th Cir.1988). One cannot imagine how two works could be substantially similar without a story that focuses on the actions of similar characters. Here, the works have almost nothing in common. The following sets forth a list of characters who appear in Carnival of Souls but not in Heroes:
On the other hand, there are virtually no characters from Heroes who have any counterpart in Carnival of Souls. These include all of the continuing characters who possess special abilities and all of the members of the carnival with the exception of Samuel, who, as discussed above, is not similar to any character from Carnival of Souls. The lack of parallel characters in the two works, and the fact that Plaintiff compares characters on an ad hoc basis in an effort to find some similarity between the works, shows that in fact they are entirely dissimilar.
The two works differ markedly in mood and setting. Carnival of Souls, which appears to be set in the first half of the twentieth century, has much in common with movies like Saw, Friday the 13th, Halloween, and classics such as Frankenstein and Dracula and little in common with anything that appears in Heroes. Blending a bit of Freudian psychology with a cartoonish nihilism, it portrays scenes of graphic violence and depravity through which it suggests that reality is an illusion.
Heroes, on the other hand, is set largely in contemporary American cities — Los Angeles, New York, Washington, D.C. — with some important events occurring in Georgia and Texas. Occasionally, the scene shifts to Japan, where Hiro grapples with a potentially terminal illness, and to India where Mohinder continues his father's research. To the extent possible given the premise of "evolved humans," it is reality based and character driven. It focuses heavily on the lives of its principal characters and how they cope with their differences. Indeed, the carnival theme introduced
Based on the foregoing, the Court concludes that, even if those who wrote the Season Four episodes of Heroes had access to Carnival of Souls, and even if they read the work and drew inspiration from it, the two works are not substantially similar within the meaning of Ninth Circuit copyright jurisprudence. Plaintiff's copyright infringement claim therefore fails the extrinsic test and is
Finally, the Court considers whether Plaintiff's state law claims for intentional and negligent interference with a prospective economic advantage, unfair competition, and unjust enrichment are preempted by the Copyright Act. The Ninth Circuit has "adopted a two-part test to determine whether a state law claim is preempted by the [Copyright] Act." Laws, 448 F.3d at 1137. Under this test, the court "must first determine whether the `subject matter' of the state law claim falls within the subject matter of copyright as described in 17 U.S.C. §§ 102 and 103." Id. Next, assuming that it does, the Court must "determine whether the rights asserted under state law are equivalent to the rights contained in 17 U.S.C. § 106, which articulates the exclusive rights of copyright holders." Id. at 1137-38 (citation omitted).
Section 102 of the Copyright Act defines the subject matter of copyright as follows:
17 U.S.C. § 102 (emphasis added). Moreover, pursuant to § 106, the owner of a copyright has the exclusive rights to reproduce, prepare derivative works, and distribute copies of the copyrighted work. 17 U.S.C. § 106.
Here, the first prong of the preemption test is clearly satisfied. Carnival of Souls, a graphic novel, is a literary, pictorial, and graphic work. As such, it falls within the ambit of subsections one and five of § 102. See 17 U.S.C. § 102(1) & (5). The second prong is likewise satisfied as to each state law claim.
First, with respect to the economic interference claims, the Ninth Circuit has addressed similar claims on many occasions and found them to be preempted. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1151 (9th Cir.2008). Where claims of such interference are based on the misappropriation or improper use of one's exclusive right to exploit a protected work, such a claim essentially restates the infringement claim and is preempted. Here, the interference claims do just that. Plaintiff contends that Defendants were
Second, with respect to the UCL claims under B & P Code § 17200, where the alleged improper business activity is the act of copyright infringement, the claim is preempted. Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1213 (9th Cir.1998); Sybersound, 517 F.3d at 1152. This case falls squarely within the holding of those cases. Paragraph 45 of the operative complaint expressly states that, "Defendants have improperly and unlawfully taken commercial advantage of [Plaintiff's] investment in his
Finally, the unjust enrichment claim is likewise preempted. Here Plaintiff contends that Defendants have been unjustly enriched through their improper use of Plaintiff's intellectual property. Specifically, in Paragraph 50, Plaintiff alleges:
Through these words, Plaintiff essentially reiterates the other claims of the operative complaint, all of which sound in copyright. Like the other state law claims, this state claim is preempted under controlling case law.
For these reasons, the motion to dismiss the state law claims is
Based on the foregoing, the Court
