Wild v. NBC UNIVERSAL, INC.

788 F. Supp. 2d 1083 (2011)

Jazan WILD, an individual, dba Carnival Comics, Plaintiff,
v.
NBC UNIVERSAL, INC., a Delaware corporation; NBC Studios, Inc., a New York corporation; Tailwind Productions, Inc., a California corporation, Defendants.

Case No. CV 10-03615 GAF (AJWx).

United States District Court, C.D. California.

May 24, 2011.

Michael M. Baranov, Baranov and Wittenberg LLP, Los Angeles, CA, for Plaintiff.

Gail Migdal Title, Joel R. Weiner, Cory A. Baskin, Rebecca Faye Ganz, Katten Muchin Rosenman LLP, Los Angeles, CA, for Defendants.

MEMORANDUM & ORDER REGARDING MOTION TO DISMISS

GARY ALLEN FEESS, District Judge.

I. INTRODUCTION

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.

Defendants contend that there is not even the remotest similarity in expression of the ideas that underlie the two works and move to dismiss the lawsuit. They contend that, as a matter of law, Heroes does not incorporate any protected elements from Carnival of Souls and that the related state law claims are preempted by the Copyright Act. The Court agrees. While it is true that Heroes added a carnival clan as an element of its fourth season, the notion of a carnival, even a bizarre or threatening carnival with a "dark leader", is too generic to warrant copyright protection. Indeed, the notion of a nightmarish carnival has been explored in depth in a number of works including Ray Bradbury's Something Wicked This Way Comes, which was first published in 1962 and has since been made into a movie. Thus, the carnival theme, and the depiction of elements that one might expect to see in a carnival — a Ferris wheel, a house of mirrors, a fortune teller, a ringmaster, and sideshow freaks — are matters so common that they lack the originality required for copyright protection. See, e.g., Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir.1985) (plot involving the sale of organs on the black market by criminal organizations to wealthy people in need of transplants held to be abstract idea not protectable in copyright). 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 storylines, their characters, the dialogue, the setting and themes, and the mood. The Court therefore concludes that the copyright claim fails as a matter of law.

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.

II. BACKGROUND

A. CARNIVAL OF SOULS SUMMARIZED

Carnival of Souls,^[1] a graphic novel consisting of three comic books, involves a traveling carnival of damned souls and their movement between the real world and the world of dreams. (FAC ¶¶ 11, 12.)

1. BOOK 1

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."^[2] The story begins with Jazan, as a child, visiting a carnival with his mother. Jazan enjoys the carnival so much that he tells a demonic clown that he wants to live in the carnival forever; the clown tells Jazan, "You got it. Come see me in about fifteen years." Jazan and his mother leave the carnival and hurry to the airport where they board a small plane for a journey "across the subcontinent."

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^[3] and skins him in the presence of the hunter's trophies — animal heads, animal hides, a tiger's coat. Jazan acknowledges how much joy he found in killing Tara's father and wondered whether these feelings explain mysterious comments that the clown had made to him.

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.

2. BOOK 2

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 and proceeds to tell him the story of two boys, one who is a prince and will grow up to be a king, and the prince's best friend Jexter, who would grow up to be a clown.

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."^[4] The witch tells the resurrected hunter that she wants Jazan to die to rob Jexter "of the strength he can provide for his carnival." She transfers her powers to the hunter and orders him to kill Jazan. The hunter tells his servants that he is running away to join the circus. Meanwhile, in the house of mirrors, Jazan's mother warns him that the hunter is coming for him and urges him to free himself so he can fight. Book 2 ends as Jazan roars in rage, a fortune teller predicts the coming threat to the carnival, and the performers continue with their acts as the hunter is about to enter because "the show, as always, must go on."

3. BOOK 3

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 see the future. She is left with memories of the past when she was forced into a life with the carnival to avoid being burned at the stake by villagers who believed that she and her mother were possessed by the devil. As she recalls these events, she is consumed by the fear that "the beast" that motivated the villagers has returned and that Jazan should be released if the carnival is to survive. The hunter, who after entry attacks with the objective of killing everyone in the carnival, soon discovers Jazan in the house of mirrors and, when he realizes that Jazan's mother is the source of his power, destroys the mirrors and kills Jazan. The hunter then prepares to kill Tara but is interrupted by the clown who explains that all members of the carnival must remain there for eternity because they died on carnival grounds. Jazan, now dead but still alive, and the hunter then fight; although Jazan cannot kill him (carnival rules), he rips out the hunter's spine so he can suffer for all eternity. But the witch returns (it turns out she killed the fortune teller's mother) and takes the hunter away because he had already been killed before he came to the carnival, hence escaping carnival rules.

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!"

B. SUMMARY OF HEROES SEASON FOUR

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.^[5] Although these "specials" possess extraordinary abilities and powers, the characters are all human, and the stories are set in contemporary reality.

1. THE BACKGROUND TO SEASON FOUR

Season Four continues story lines developed in earlier seasons as it tracks the lives of the following principal characters:^[6]

Claire Bennet, a college student and former cheerleader who has the power to rapidly heal from any injury;

Noah Bennet (aka HRG for Horned Rim Glasses), Claire's adoptive father, who is not a "special" but who had worked as a governmental agent in a CIA-like agency that had as one of its objectives the concealment of the existence of the "specials;"

Hiro Nakamura, a former computer programmer and businessman, described as a "master of space and time" who can time travel;

Nathan Petrelli, a Senator from New York and Claire's biological father, who has the ability to fly;

Peter Petrelli, Nathan's brother, who has the ability to absorb and use the powers of other human beings with special abilities;

Matt Parkman, a Los Angeles Police Department detective, who has the ability to mentally control the brain functions of others;

Tracy Strauss, who has the power of freezing and water transformation, and Sylar, a shape-shifting, multi-powered, psychopathic serial murderer who was killed by the good guys as Season Three ended, but is not dead. At the end of Season Three, the shape-shifting qualities of Sylar's body are used to resurrect Nathan, who had been killed, but Sylar's mind has somehow become trapped and resides inside Matt Parkman's head. (Questions about Sylar such as — Is Nathan really Sylar or is he Nathan; or is Matt Parkman really Sylar; and why does the actor playing the role of Sylar appear sometimes to be Nathan and sometimes to be Matt and sometimes appear to be Sylar talking to Matt or Sylar escaping to the carnival — are best left to persons who watched the first three seasons and who might actually care about the answers.)

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.

2. THE STORY OF SAMUEL AND THE CARNIVAL CLAN

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 explains that Samuel literally has the power to move the earth, but with other specials present, has the capacity to multiply that power and do great damage. His very birth appears to have caused an earthquake that contributed to the destruction of Coyote Sands.

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.^[7] Through this process Samuel targeted Hiro, Peter, who Samuel has somehow determined may be an appropriate substitute for Joseph, Claire and Tracy. He also meets Emma to whom he gives a cello; the process also alerts him to the presence and interest of his adversary, HRG, who, as noted, is Claire's adoptive father.

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 to visit the residence where he grew up, but, when he is rebuffed, he destroys the house and those living in it. Later, he destroys a police station housing officers who killed a "special" in their custody. When he attempts, without success, to rekindle a relationship with a woman whom he longed for as a young man, he becomes so angry that he initiates an earthquake that destroys an entire town, as he announces, "I'm done trying to fit in." Although at times he seems truly disturbed at what he has done, he remains undeterred in his desire to extract revenge on the world for his perceived mistreatment and the mistreatment of all specials. While these events demonstrate the depth of his anger, he also reveals the loneliness associated with being different which allows him to empathize with the experiences of Claire and Tracy in particular. Samuel appeals to their shared sense of isolation in an effort to persuade them to join the carnival where he promises they will find acceptance. In Samuel's words, it is "a whole lot easier for people like you to understand you."

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.

C. PLAINTIFF'S ALLEGATIONS

Although a detailed study of the two works (as reflected in the foregoing recitation) demonstrates the radical differences between them, Plaintiff insists that the stories are indistinguishable and alleges that Heroes infringes on his copyright in Carnival of Souls. In Paragraphs 14-20 of the FAC, he sets out what he characterizes as characters, storylines, themes and settings from Carnival of Souls that purportedly appear in Heroes:

(1) a traveling carnival that can magically appear and disappear to collect its protagonists in connection with settings and storylines that "are virtually the same;"

(2) a main character/"dark leader" (apparently comparing Samuel to the demonic clown) who leads a carnival of outcasts and lost souls, and who seeks to make his carnival more powerful by recruiting new members with special abilities;

(3) a young boy who enters the carnival, receives a prophecy that changes his life, and develops special abilities that then leads to the very same carnival seeking them out, approximately 14 or 15 years later;

(4) a sequence in which either a Carney or Hero, suspected of having committed a murder, runs through a remote wooded area while being chased by an angry mob and finding refuge in the carnival which disappears before the mob locates the fleeing suspect;

(5) a hall of mirrors scene in which a protagonist is forced to reveal secrets about himself;

(6) a Jamaican voodoo witchdoctor with dreadlocks;

(7) a carnival appearing in nightmarish visions where a Carney or Hero awakes in a panicked state;

(8) a fortune-teller warning that a hunter is coming to attack the carnival;

(9) hunters attacking the carnival in an attempt to undermine its power; and

(10) the presence of a hunter's daughter during the attack.

(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.

III. DISCUSSION

A. LEGAL STANDARD FOR MOTION TO DISMISS

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).

B. APPLICATION

1. COPYRIGHT INFRINGEMENT CLAIM

The Court first considers whether to dismiss the copyright infringement claim. To state a claim for copyright infringement, a plaintiff must allege: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). The second prong requires Plaintiff to allege that "the infringer had access to plaintiff's copyrighted work and that the works at issue are substantially similar in their protected elements." Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002). The Court will assume access for purposes of ruling on this motion and therefore turns to the question of substantial similarity.

"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 plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works." Cavalier, 297 F.3d at 822 (internal quotation and alteration omitted) (emphasis added). The extrinsic test can be applied by the Court where there is no factual dispute regarding the content of the competing works at issue in the litigation. See Berkic v. Crichton, 761 F.2d at 1292 (substantial similarity often decided as a matter of law); Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir.1977) (extrinsic test "may often be decided as a matter of law"); see also, Cavalier, 297 F.3d 815 (motion for summary judgment); Shaw, 919 F.2d 1353 (motion for summary judgment). Here, because there is no dispute regarding the nature and content of the two works, the Court can determine whether, under the extrinsic test, the two works are substantially similar. The Court therefore turns first to a more detailed discussion of the test and then applies the test to the allegedly infringing work to determine whether Heroes infringes Plaintiff's copyright in Carnival of Souls.

2. THE EXTRINSIC TEST

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 disregard[s] the non-protectable elements in making [the] substantial similarity determination." Funky Films, 462 F.3d at 1077 (internal quotation and alteration omitted).

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

begin with the murder of a black and a white policeman with a handgun at close range; both depict cockfights, drunks, stripped cars, prostitutes and rats; both feature as central characters third-or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled, demoralized police officers and unsuccessful foot chases of fleeing criminals.

Id. The court ultimately concluded that these similarities, though quite detailed, relate to uncopyrightable material. Id. Specifically, the court noted that

[e]lements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx. These similarities therefore are unprotectible as "scenes a faire," that is, scenes that necessarily result from the choice of a setting or situation. Neither does copyright protection extend to copyright or "stock" themes commonly linked to a particular genre. Foot chases and the morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often-recurring themes of police fiction. As such, they are not copyrightable except to the extent they are given unique-and therefore protectible-expression in an original creation.

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.

(A) The Dark Carnival Theme

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 carnivals are alike in this respect is not supported by the content of Carnival of Souls. At the end of Book 1, the carnival can be seen rolling along a road with its props, animals and personnel in what appear to be horse drawn wagons. The story provides no other clues as to the location of the carnival or how it may have gotten to that location except as indicated in this single illustration. Thus, the factual premise — that both carnivals magically appear and disappear is not supported by Plaintiff's graphic novel. But even if it were, the concept of a person, animal, or thing that can disappear from one location and magically appear elsewhere is, again, an idea that is common to the fantasy or horror genre. For example, it is a favored mode of transportation in the Harry Potter series; one of the most memorable lines from Star Trek is "beam me up, Scotty;" and Jacob, the mysterious adviser to Ben, the leader of the "others" in Lost "resides" in a cabin whose location mysteriously disappears from one location and reappears in another. Even the carnival in Something Wicked mysteriously arrives at 3:00 a.m. Thus, the carnival's movement is not a protectible element.

(B) The Expression of the Carnival Themes

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 whole person." (Emphasis in original.) Near the end of Book 3, the clown announces that "once you hand in your ticket and you die on carnival grounds, you stay forever! Just like Jazan." (Emphasis in original.)^[8] The dialog further suggests that the carnival's inhabitants, held in captivity by the demonic clown, remain in a state between life and death.

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 families with mothers, fathers and children who live comfortably among those who understand and appreciate them for what they are. These clan members remain with the Sullivan Brothers Carnival not because they have been taken prisoner but because they have chosen to seek refuge there.

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.

(C) Plot

(1) The Basic Story

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 and whose strength is multiplied by the presence of others with special abilities. Because of Samuel's ambitious nature, Samuel's brother Joseph, who appears to be the founder of the Sullivan Brothers carnival, has hidden the truth about Samuel's powers and kept him hidden away and occupied in the carnival for many years. When Samuel discovers the truth, he kills his brother in a fit of rage, and, though remorseful over his fratricide, sets out on a path to gain respect for specials by wreaking havoc on the rest of the world for having treated them like outcasts. Thus, while the demonic clown sought to make himself whole and real by gathering together and enslaving many souls, Samuel, using flattery, empathy, persuasion, manipulation and deceit, seeks respect for himself and for all people with special abilities.

(2) The Prophecy Element

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 forever." (Emphasis in original.) The clown responds, "You got it, come see me in about fifteen years!" This is hardly a prophecy. There is no fortune teller, soothsayer, or voodoo witch doctor in the scene predicting the future. An interchange that, though it may carry ominous overtones and foreshadow things to come, can hardly be described as a prophecy even if it proves, in retrospect, to be prophetic. What actually happens is that, years later, having tasted blood with the killing of the hunter, it is Jazan who pursues the carnival until he finds it "creaking slowly, impossibly up a hill...." His pursuit, as noted, results in his capture and being offered up as one of the carnival's spectacles. And his "special ability," if it can be called that, is the loss of his humanity as he becomes less human and more a feral beast of prey as he spends his life with the tigers.

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.

(3) Recruiting New Members

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.

(4) The "Chased by a Mob" Scene

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.^[9] Thereafter, as he wanders about contemplating the satisfaction he felt over the kill, he spies the carnival (his dream) and pursues it to the point where he is captured and caged. Thus, he "finds refuge" as a victim of the clown's plot to make him one of the carnival's prisoners.

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 he was involved in the accidental death of his teenage girlfriend. He further discovers that his mother engaged in an elaborate cover up that created the appearance that the girlfriend ran away from home never to be heard from again. Nathan reveals the truth to his girlfriend's mother who then hires a hit man to kill Nathan and bury his body in the woods. However, the resilient Sylar, whose body Nathan is inhabiting, reanimates after being shot and buried, pulls himself from the grave, appears as himself instead of Nathan, and is found wandering in the woods. He is taken into custody by police officers as a potential mental patient where he is questioned by a police psychologist as he tries to recover his memories. When his fingerprints are run by the police, he is identified as a murder suspect. Still dazed and confused regarding his identity, Sylar unwittingly exercises his special powers to fend off blows from a police officer. He then kidnaps the psychologist and flees from the station in a police car. They are soon overtaken, where he is surrounded and shot. But because he can't be killed, he survives and is urged by the psychologist to flee. He is then pursued through the woods by police officers and their dogs. He finds Samuel and the carnival, where he is given shelter as the carnival disappears from sight.

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.

(5) The Appearance of the Carnival in Nightmarish Visions

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 unleashed." (Emphasis in original.)

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.

(6) The Hunter's Attack

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.

(7) The Presence of a Hunter's Daughter During the Attack

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.

These are the two scenes that Plaintiff contends are substantially similar in their expression. As in every other instance, the description of the scenes as portrayed in the two works belies any similarity except at the most abstract level. Copyright law does not prohibit similarity at that level of abstraction.

(8) Destruction of the Carnival

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 aboard son, and this time, don't mind your mom!" (Emphasis in original.) In short, the two works end differently from each other and differently from the description found in the pending complaint.

(D) Dialog

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.)^[10] He says nothing else. In Heroes, Sylar is taken to a house of mirrors where, with the assistance of the witch doctor, his memories are made visible in the mirrors. He sees an image of his mother, and asks, "Mom?" after which he observes himself murdering her. He whispers, "oh my god, oh my god, oh my god, no. No. This isn't me...." Sylar continues in a similar vein as he is forced to relive this event from his evil past. That Jazan speaks the word "Mother" and Sylar says the word "Mom" hardly qualifies as substantially similar dialog particularly given the context in which the words are spoken. Much longer phrases and sentences have been held to be unprotectible under copyright law. Narell, 872 F.2d at 911-12.

(E) Characters

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.

(1) The "Dark Leader"

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.

(2) Other Characters

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, Ex, 5A and 5B) enables a visitor to the house of mirrors to see his or her memories in the mirrors. The character is on screen for mere moments and says nothing. Carnival of Souls has two different depictions of a carnival member with beads on the head, rings in nose and lips, and possibly dreadlocks down the back. The character says nothing and he has no role in the storyline. These are stock characters of the type one would expect to find in a carnival. Indeed, Carnival of Souls treats the character as such by giving him no dialog, but portraying him along with other stock characters to depict the denizens of the carnival. But even if the characters were viewed as something other than stock characters, their brief depiction in the two works is insufficient to create substantial similarity within the meaning of controlling precedent. See, e.g., Benay, 607 F.3d at 626-28 (presence of some parallel characters in two works insufficient to establish substantial similarity particularly where many important characters in the two works have "no obvious parallel in the other work"); Olson, 855 F.2d at 1452 ("the less developed the characters, the less they can be copyrighted").

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.^[11] Other than the fact that both characters at one point end up in a house of mirrors, Sylar and the hunter have nothing in common. In one scene, the hunter, who sees Jazan's mother in the mirrors, destroys the mirrors to prevent her from communicating with Jazan. In Heroes, Sylar, who at that point is in a state of confusion, is confronted in the house of mirrors by a police officer who attempts to take him into custody. Sylar uses his powers to disable the officer, at which point Edgar the knife thrower enters and kills the officer. The characters are not similar, the events are not similar, and Plaintiff's suggestion that the Heroes scene was "storyboarded" from Carnival of Souls finds no support in reality.

(3) The Absence of Parallel Characters

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:

Jazan Wild — the boy who survives a plane crash, washes up in the Indian jungle, and becomes more beast than man as he is raised by tigers;

Jazan's mother — she takes him to the carnival, dies in the crash, and reappears in magic mirrors and in his dreams;

The obsessed hunter — he becomes enraged as Jazan attacks his livestock and romances his daughter and the two become mortal enemies;

The witch — adversary of the demi-god/clown that leads the carnival, who reanimates the hunter and uses him to attack the clown and his carnival;

Jexter — the young boy, friend of the prince, who discovers the clown skull and is possessed by its spirit until he becomes the demonic clown;

The prince — Jexter's friend who becomes king and is persuaded by the witch's lies to behead Jexter, with tragic consequences;

The fortune teller and her mother — she feels the coming of the hunter and relives her own past when she and her mother are pursued by a mob who believe them to be possessed by the devil. She escapes to the carnival to avoid being burned at the stake.

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.

(F) Mood and Setting

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 in Season Four plays heavily on the need for "specials" to have a place of their own where they need not conceal who they are to gain acceptance from the group. In short, in mood and setting, the two works bear no resemblance to each other.

(G) Conclusion re: Extrinsic Test

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 DISMISSED without leave to amend.

C. STATE LAW CLAIMS

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:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

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 aware of certain unspecified continuing and advantageous economic relationships "and intended to interfere with and disrupt them by wrongfully incorporating themes, story lines, plots, characters, and locations of [Carnival of Souls] into [Heroes]." See (FAC ¶¶ 30, 37.) This amounts to nothing more than reiterating an economic loss resulting from the misappropriation of Plaintiff's copyrighted work. This is a claim that must be "exclusively addressed by the federal Copyright Act." Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1193 (C.D.Cal.2001). As the Idema court put it, this claim seeks recovery for "the alleged encroachment on one's exclusive right to profit from sale or reproduction of one's original work(s) of authorship." Id. Such claims are preempted.

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 copyright works...." See also (Id. ¶ 50) (alleging that Defendants unjustly received benefits by infringing on Plaintiff's copyrights). Such an allegation makes it clear that the unfair competition is the improper use of Plaintiff's copyrighted work. Under controlling Ninth Circuit case law, the claim is preempted.

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:

Defendants unjustly received benefits at the expense of WILD through their wrongful conduct, including infringement of Plaintiff's copyrights, interference with WILD's business relationships and other unfair business practices.

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 GRANTED without leave to amend.

IV. CONCLUSION

Based on the foregoing, the Court GRANTS Defendants' motion and DISMISSES Plaintiff's copyright infringement, intentional and negligent interference with a prospective economic advantage, unfair competition, and unjust enrichment claims without leave to amend.

IT IS SO ORDERED.

NOTES

[1] The Court takes judicial notice of Season 4 of Heroes and the three part books that make up Carnival of Souls. Fed.R.Evid., Rule 201(b). See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005).

[2] The facts pertaining to this section can be found in books 1-3 of Jazan Wild's Carnival of Souls.

[3] The Court uses the word "nearly" because the narration suggests that the hunter's daughter, who comes upon the bloody scene, "didn't even notice her father stir." Perhaps he is still alive. On the other hand, the witch in Book 2 claims credit for bringing him back to life, so the reader is left with this ambiguity.

[4] How Jexter, the beheaded, murderous clown, obtains a body and became the master of the carnival is left to the imagination.

[5] Unless otherwise indicated, the descriptions contained in this section are based on the Court's review of the five DVD set of Heroes Season Four.

[6] There are other continuing characters, but their roles all intersect with and are subordinate to the main characters listed in the text.

[7] This is unlike anything in Carnival of Souls and very much like Ray Bradbury's Illustrated Man.

[8] One wonders why this applies to Jazan. He and his tiger friends were abducted; they didn't hand in any ticket. So why does his "on grounds" death subject him to the eternal custody of the carnival owner?

[9] Through Exhibit 2A, Plaintiff claims that both flight scenes involve "female characters [who] call out to the protagonists as they flee from an angry mob." This observation suffers from several defects. First, Sylar is not the Heroes protagonist; as a murderer he is an antagonist to other specials who do good works. Moreover, his character and role in the series bears little relationship to Jazan's role in the graphic novel. Further, the scenes differ radically in that Tara, Jazan's girlfriend, calls out to him because she wants to know what has happened. The female character in Heroes, a police psychologist, knows the situation but does not believe that Sylar is a killer. She urges him to flee or risk being killed. The two scenes are similar only in the abstract, not in their expression.

[10] Plaintiff also offers Exhibit 3C which he claims shows both protagonists (comparing Jazan to Sylar?) who cry out after being "told dark secrets by their dead mother." He contends that the Heroes scene appears to be "directly storyboarded from Carnival of Souls. A comparison of the two works refutes the contention. Jazan's mother tells him of the coming of a "dark mother," the witch who is the clown's adversary, and warns him that he must be free to fight Victor, the returning hunter. The images in the Sullivan Brother's carnival, by contrast, do not predict the future, they reveal the truth about Sylar's past and his murderous nature. Although the information is provided through mirrors, the idea of a magic mirror is one that has been used regularly in movies and literature for decades. Indeed the idea, which goes back at least to Snow White ("mirror, mirror on the wall ...") and is so common that it was parodied in Shrek.

[11] As noted above, in a different portion of his analysis Plaintiff compares Sylar to Jazan in an effort to find a similar line of dialog in the two works.