IP Spotlight: "Heroes" Prove Super in Copyright Infringement Action

“Heroes” prevailed in a copyright infringement action against a graphic artist’s claims that his work was substantially similar to the now defunct NBC television show.

“Heroes” was an NBC television show about ordinary everyday people who gain super powers after a strange solar eclipse. We all fondly remember the first season of “Heroes” and its great run of programs that enchanted the hearts of Americans with the mystery surrounding the slogan “Save the Cheerleader, Save the World,” and then the second season happened….Soon thereafter the show quickly lost its fan base and popularity. 

Despite the show being off the air since 2010, a highly contested copyright infringement case has waged on for many years. In Wild v. NBC Universal, Inc., plaintiff Jazan Wild brought a claim against NBC Universal, Inc. asserting  that NBC copied protectable elements of his comic book series, “Carnival of Souls,” in its adaptation of the television show “Heroes.” He argued that “Heroes” contained the same carnival theme and significant visual similarities as his comic books.

In order to succeed in a copyright infringement claim, the plaintiff must show two elements: access and substantial similarity. Without either element, a copyright infringement claim must fail. To establish substantial similarity, the Court employs a two-part test.

When looking at some of the scenes as depicted in the complaint, the Ninth Circuit Court of Appeals held up the district court’s decision.

The district court found that the only similarities that exist between the two works are standard carnival scenes and those that would normally and naturally flow from them, known in copyright law as “scenes a faire.” Because copyright law does not protect ideas, but rather the actual expression of ideas, such a generic concept is not protected.

Since the court also found that the works differ drastically in their plots, storylines, characters, dialogue, setting, themes, and mood, the extrinsic test fails and substantial similarity under the law is lacking. Therefore, the district court found that, even assuming NBC had sufficient access to Wild’s work, the copyright infringement claim must fail.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement. 

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

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