Mallery v. NBC Universal, No. 07 Civ. 2250, 2007 U.S. Dist. LEXIS 88960 (S.D.N.Y., December 3, 2007)

Another “absurd” (the court’s words) claim that a Hollywood studio stole plaintiffs’ ideas for a hit show. And another reminder that not all copying amounts to actionable copyright infringement. That two works of fiction have similar plot, scenes or characters does not necessarily mean there is infringement.

Plaintiffs claimed that the TV show “Heroes” was “strikingly similar” to a novel, short film and painting series they created. “Heroes” is a show that borrows from comic book lore and tells the intersecting stories of a diverse group of individuals who discover they have superhuman powers. In the first season, the characters try to prevent an explosion that is set to destroy New York City, as predicted in paintings created by a character who can draw the future (like the one shown below).

Plaintiffs claimed that “Heroes” was similar to their works in a number of ways. They claimed that it contained characters who were “minorities” and had the ability to paint the future. They also claimed that the stories both featured paintings depicting New York buildings destroyed and predictions that were validated in a newspaper. Other alleged similarities included close up eye images, twin characters, and characters trying to stop tragic events.

The court granted defendant’s motion for summary judgment and held that any similarities between the works related to unprotectable ideas. Storylines such as a minority artist painting the future or heroes trying to stop a catastrophe are scenes à faire, that is to say elements that necessarily follow from the choice of storyline or situation and are not protected by copyright. The court also rejected plaintiff’s argument that the works had similar “total concept and feel.” It noted that any similarities were too abstract for a jury to find substantial similarities and that the two stories “differed in nearly every relevant way.”

This opinion follows a long-line of cases holding that similar stories and characters do not necessarily amount to copyright infringement; for example cases finding that a children’s book about a dinosaur zoo was not substantially similar to the film Jurassic Park, or that the character of Superman was not substantially similar to the TV show “Greatest American Hero.”