                                                                              FILED
                            NOT FOR PUBLICATION                               FEB 28 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAZAN WILD, an individual, DBA                   No. 11-56065
Carnival Comics,
                                                 D.C. No. 2:10-cv-03615-GAF-
              Plaintiff - Appellant,             AJW

  v.
                                                 MEMORANDUM *
NBC UNIVERSAL, a Delaware
corporation; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                      Argued and Submitted February 4, 2013
                               Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.

       Plaintiff-Appellant Jazan Wild appeals the district court’s decision

dismissing his copyright infringement and related state law claims against NBC



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
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

access 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 subjective impressions. Id. at 1077. Under the

extrinsic test, we evaluate dramatic and literary works for “‘articulable similarities

between the plot, themes, dialogue, mood, setting, pace, characters, and sequence

of events’ in the two works.” Id. (citation omitted). The district court analyzed the

two works in detail and concluded that “[o]ther than the presence of generic


                                           2
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.” Wild, 788 F. Supp. 2d at 1090.

We have independently reviewed the works and agree.1

      Plaintiff also contends that the two works are visually similar, juxtaposing a

number of screen shots from Heroes with individual frames from Souls, including

depictions of a character approaching a carnival, characters in the house of mirrors,

and a view through a gun sight. These images, however, are simply unprotectable

“stock scenes” or “scenes a faire” (situations that naturally flow from a basic

premise). See Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002).

Any remaining comparable aspects of these scenes constitute nothing more than

“random similarities scattered throughout the works” that are insufficient to

support a claim of substantial similarity. Litchfield v. Spielberg, 736 F.2d 1352,

1356 (9th Cir. 1984). Consequently, the district court correctly found that – even



      1
         Although Plaintiff contends that the district court should have given him an
opportunity to submit expert testimony in support of his claims, he has never
articulated how an expert could assist the court’s analysis in the particular
circumstances of this case. Although expert testimony is often necessary when
evaluating substantial similarity, see, e.g., Three Boys Music Corp. v. Bolton, 212
F.3d 477, 485 (9th Cir. 2000), there is no categorical rule prohibiting courts from
conducting such an evaluation without it, see Christianson v. W. Pub. Co., 149
F.2d 202, 204 (9th Cir. 1945).

                                           3
assuming that NBC had access to Plaintiff’s work – Plaintiff cannot satisfy the

extrinsic test, and consequently, his copyright claim must fail.

                                           II.

      Plaintiff further contends that the district court abused its discretion by

dismissing his claims without leave to amend. Before the district court, Plaintiff

“did not propose any new facts or legal theories for an amended complaint and

therefore gave the [district court] no basis to allow an amendment.” Gardner v.

Martino, 563 F.3d 981, 991 (9th Cir. 2009). On appeal, Plaintiff argues that he

may be able to allege a number of additional facts all concerning NBC’s alleged

access to Souls. The district court, however, assumed that NBC had access to the

work. Wild, 788 F. Supp. 2d at 1110. Consequently, any such amendment would

have no impact on our analysis. Accordingly, the district court did not abuse its

discretion in dismissing Plaintiff’s claims without leave to amend.2

      AFFIRMED.




      2
         Plaintiff initially suggested that the district court improperly dismissed his
state law claims, but then failed to support his argument with any analysis in his
opening brief. Summary assertions of this nature are not sufficient to preserve a
claim for review. Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 776 n.3 (9th
Cir. 2010) (citing Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)).

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