Jazan Wild v. Nbc Universal

MEMORANDUM

Plaintiff-Appellant Jazan Wild appeals the district court’s decision dismissing his copyright infringement and related state law claims against NBC Universal, Inc. and Tailwind Productions, Inc. (“NBC”). Plaintiff contends that the fourth season of NBC’s television series Heroes infringed his three-part graphic novel, Jazan Wild’s Carnival of Souls (“Souls”). The district court took judicial notice of the two works and dismissed the complaint without leave to amend based on a lack of substantial similarity in their protectable elements. Wild v. NBC Universal, Inc., 788 F.Supp.2d 1083 , 1090 & n. 1, 1110-11 (C.D.Cal.2011). The district court also dismissed Plaintiff’s state law claims, finding them preempted by the Copyright Act. Id. at 1110-11 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

To prevail on his copyright infringement claim, Plaintiff must show both aecess and substantial similarity. Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 , 1076 (9th Cir.2006). To establish substantial similarity, a plaintiff must satisfy both an extrinsic test, focusing on objective elements, and an intrinsic test, focusing an ordinary person’s…