EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, June 7, 2012

Ray Bradbury, Something Wicked This Way Comes, Carnival Of Souls, NBC's Heroes, Evel Knievel & Judicial Notice

Ray Bradbury, who passed away yesterday, was certainly a formative influence on my childhood. As I'm sure was the case for many children of the 1980s, my first exposure to the sci fi author was Spaceship Earth at EpcotBradbury helped design the gigantic golf ball and also helped write the storyline for the attraction. After that, my brother and I were constantly checking out his short story collections from the library. One of my favorite short stories of his, "Marionettes, Inc.," would become my prose piece of choice for junior high forensics before I became an extemporaneous speaker. Around the same time, we were assigned "Fahrenheit 451" and "A Sound of Thunder" in English class, both of which scarcely seemed like homework at all. "The Ray Bradbury Theater," which ran from 1985-1992, was also a staple of my childhood. The episode that most gave me the willies was the one that gave me the Willie....Shatner that is. In 1985's "The Playground," Shatner played Charles Underhill, with IMDB describing the episode as follows:

Charles Underhill lives in the suburb with his young son Steve, but he does not allow Steve to play in the nearby playground with other children. Charles has a childhood trauma with the bully Ralph and his friends, and he frequently sees his ghost challenging him, until the day he decides to go to the playground with Steve and face the wounds of his past.

I'm sure that my experience with Bradbury was no different than the experiences of any number of children and adults over the last several decades, which is why I can safely say that he is deeply ingrained in American pop culture. And that was precisely the problem from the plaintiff, Jazan Wild, the author of the graphic novel, "Carnival of Souls," in his copyright action against NBC Universal for the fourth season of the television show "Heroes."

As noted, Wild wrote "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." In Wild v. NBC Universal, Inc., 788 F.Supp.2d 1083 (C.D.Cal. 2011), Wild sued NBC Universal for copyright infringement, claiming that the carnival theme employed in season four of the NBC show Heroes copied protected elements from his graphic novel.

In response, NBC Universal filed a motion to dismiss, claiming "that there is not even the remotest similarity in expression of the ideas that underlie the two works and move to dismiss the lawsuit." The Central District of California agreed, finding that 

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....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.

This to me seems like a just outcome, especially in light of the fact that it has been noted that the fourth season of "Heroes" actually alludes to Something Wicked:

Season 4 of NBC's Heroes stars Robert Knepper as "Samuel" who has a similar persona as G.M. Dark and uses Lydia (the tattooed lady) and her tattoos to gain information about others.

But the court in Wild did something odd that I want to highlight in this post. Here's footnote 1 in the court's opinion:

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

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Now, a court can certainly take judicial notice of the content of a slice of pop culture. In Sobhani v. @radical.media Inc., 257 F.Supp.2d 1234, 1235-36 n. 1 (C.D.Cal.2003), the Central District of California took judicial notice of the content of the film "Cast Away" in a lawsuit involving Jack-in-the-Box commercials parodying it. And, in Twentieth Century Fox Film Corp. v. Marvel Ents., 155 F.Supp.2d 1, 41 n. 71 (S.D.N.Y.2001), the Southern District of New York took judicial notice of the fact that "Star Wars" is an unquestionable representation of the generic storyline of a mentor-mentee relationship in science fiction.

But then there's Capcom Co., Ltd. v. MKR Group, Inc., 2008 WL 4661479 (N.D.Cal. 2008), in which MKR, which owns the copyrights and trademarks to the 1979 movie "Dawn of the Dead," brought a copyright action against Capcom for its 2006 video game "Dead Rising." Capcom asked the Central District of California to

take judicial notice of: (1) the 1979 Dawn of the Dead movie and the Dead Rising video game; (2) numerous other zombie movies and video games; and (3) certain ideas and elements common and prevalent in such movies and games.

The court, however, refused, finding that

As MKR asserts, it can hardly be said that the zombie movies and video games presented in exhibits six through forty-four are "generally known," especially in light of the fact that many of these movies were made long ago, indeed in some instances as far back as 1932. These exhibits, therefore, do not qualify for judicial notice.

So, let's see. Is Season 4 of Heroes as "generally known" as Cast Away or Star Wars? Absolutely not. Is it as "generally known" as Dawn of the Dead? I certainly hope not, but the question is arguable. Is it "generally known" enough to qualify for judicial notice? I doubt it. As for Carnival of Souls? Forget about it. I see no conceivable way that the court could have thought that the graphic novel was "generally known" enough to take judicial notice of its content, which is what the court did.

What's even more curious to me, though, was the court's citation to Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005), as support for the proposition that it could take judicial notice. Knievel is actually a case that I use in Civil Procedure class to teach the Erie doctrine. Here are the basic facts:

Famed motorcycle stuntman Evel Knievel and his wife Krystal were photographed when they attended ESPN's Action Sports and Music Awards in 2001. The photograph depicted Evel, who was wearing a motorcycle jacket and rose-tinted sunglasses, with his right arm around Krystal and his left arm around another young woman. ESPN published the photograph on its "extreme sports" website with a caption that read "Evel Knievel proves that you're never too old to be a pimp." The Knievels brought suit against ESPN in state court, contending that the photograph and caption were defamatory because they accused Evel of soliciting prostitution and implied that Krystal was a prostitute.

Now, the majority opinion in Knievel did not explicitly take judicial notice of anything, but in essence it did by finding, inter alia, that

The web pages immediately preceding and following the Knievel photo use slang words such as "hardcore" and "scoping," and slang phrases such as "throwing down a pose," "put a few back," and "hottie of the year," none of which is intended to be interpreted literally, if indeed they have a literal meaning at all. We think that any reasonable viewer would have interpreted the word "pimp" in the same loose, figurative sense as well.[FN8]

[FN8] "Pimp" has traditionally meant a man in charge of prostitutes. Webster's New World Dictionary 1025 (2d ed.1986) (defining "pimp" as "a man who is an agent for a prostitute or prostitutes and lives off their earnings."). But "[t]oday it's a very ambiguous term, used as either a compliment or an insult towards a male. In its positive form, it means that the person is 'cool.' In its negative form, it insults their attitudes, clothing, or general behavior." http://www.ocf.berkeley.edu/~ wrader/slang/p.html (visited April 9, 2004); see also http://www.slangsite.com/slang/P.html (visited April 16, 2004) (noting that the term "pimp" can also be used “when complimenting a person on their mastery of the subject matter”).

In respone, Judge Bea wrote in dissent that

[FN5] There is no evidence in the record to support the district court's conclusion that the targeted audience is likely to use many of the terms in the website in everyday conversation. Nor can judicial notice be taken, had it been requested (which it was not) that youngsters call each other "pimps" in a jocular and light-hearted manner, rather than to provoke street corner fights. But even if we were to accept the stereotype of youth the Majority shares with the district court, neither consider a stereotype of other possible viewers: the more aged, the adolescents brought up in traditional or religious families, where modesty and decency are core values; the persons active in gender equity activities who greatly resent the power inequality which exists between pimps and prostitutes. One could go on. The point is the district court and the Majority have closed the door to consideration of the audience that makes up the "reasonable person" standard by which to judge the credibility of the statement, after positing a single stereotype: the "trash-talking" adolescent the alleged defamer claims to have targeted. Somewhat inconsistently, the Majority nevertheless inveighs against the anecdotal evidence offered by Knievel's attorney regarding the definition of the term "pimp." See Majority Op. at III.B.2. The function of the court at this pleading stage is not to choose between the versions to find what is credible; it is to determine whether plaintiffs' submission is conceivably credible.

Knievel is thus an odd case for a court to cite for the proposition that it could take judicial notice when (a) the majority didn't explicitly take judicial notice; and (b) the dissent had a pretty good argument that the majority could not have taken judicial notice.



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The pincite to the Knievel case, p. 1076, includes the court's discussion of the "incorporation by reference" doctrine, which allows the court to consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." A bit later and continuing to p. 1077, the court adds, "When browsing the CD–ROM, we found that in order to access the photograph, one must first view, at minimum, the nine photographs that precede it and the EXPN.com home page. Therefore, we take into account the web pages attached to ESPN's motion to dismiss under the 'incorporation by reference' doctrine." Other courts, including some within the 9th Circuit, have treated incorporation by reference and judicial notice interchangeably or, amounting to the same result, have taken notice of content incorporated by reference. So is the court in Wild v. NBC merely incorporating the full texts/episodes of the competing stories, the authenticity of which nobody challenges, for purposes of summarizing them?

Posted by: Dean C. Rowan | Jun 7, 2012 4:04:45 PM

I am Jazan Wild. I diagree with your analysis of my suit aganist Heroes and NBC. I never sued over a generic carnival, magical or otherwise. I sued over specific scenes being taken out of my copyrighted story and used in Heroes. I am a huge Ray Bradbury fan, and he was a master of storytelling. There is enough room in this world for millions of carnival stories. What NBC and the judge did was not address the actual facts of the case, but rather talked about all that was not stolen.

Here in this link is part of what was filed on our appeal. See if you see any similarity between the works.


It was not all carnival stories I was suing about, but my carnival story. The copyright office saw the copyright infringement in my case and told me so. However, my case, which is on appeal, was number 50 to 0 in which a major network or studio "won" against a claim of copyright theft. The current number is 60 to 0. Not one win in 20 years.

("Third parties now have the freedom to steal from screenplays with impunity, provided they cover their tracks by creating sufficient dissimilarities in what is, in reality, a “derivative work.”) Quote from Death of Copyright by Steven T. Lowe


As to my case, no reasonable person could look at the link, that contains my image copyrights and story copyrights (which are two separate copyright protections btw) and state that they see NO similarities, or the same setting and mood. If the above link was an IQ test in which you have to match the similar images to one another... all people with normal intelligence would see the similarities. ALL.

The problem I was addressing was that when someone works for years to get their stories published, and they register their story with the copyright office, they should have the protection as the 1976 Copyright Act promises they should have. I have protection over my Carnival of Souls story. Just because it takes place in a carnival does not mean the story is unprotected. As you see...

Example 1:

A (Carnival Of Souls) protagonist is fleeing in a wooded area when a carnival appears to take him in. The carnival is deserted and ghost-like; the carnival appears just for the purpose of taking in this protagonist with special abilities.(This is the cliff-hanger to the end of Carnival Of Souls first issue.)

A (Heroes) protagonist is fleeing in a wooded area when a carnival appears to take him in. The carnival is deserted and ghost-like; the carnival appears just for the purpose of taking in this protagonist with special abilities. (This is the cliff-hanger to the end of Heroes Episode #405.)

Example 2:

(The next issue of Carnival Of Souls, when the Carnival Storyline continues)... The protagonist, that was taken in by the Carnival that appeared in the woods, now is fighting with the other carnies that live in the Magical Carnival.

(The next issue Heroes Episode #406, when the Carnival Storyline continues)... The protagonist, that was taken in by the Carnival that appeared in the woods, now is fighting with the other carnies that live in the Magical Carnival.

Example 3:

(In the middle of the next issue of Carnival Of Souls)... The protagonist that was taken in by the Carnival that appeared in the woods, and is now is fighting with the other carnies, goes into a House Of Mirrors and sees his dead mother in every mirror. The ghost of the dead mother calls the protagonist’s name out and he responds by saying... "Mother?"

(In the middle of the next Heroes Episode #406)... The protagonist that was taken in by the Carnival that appeared in the woods, and is now is fighting with the other carnies, goes into a House Of Mirrors and sees his dead mother in every mirror. The ghost of the dead mother calls the protagonist’s name out and he responds by saying... "Mom?"

As you can plainly see, this does not appear in every carnival story ever made. It does appear in Heroes Season 4 and my Carnival of Souls story. Along with a lot of other similarities. I do have copyright protection, but what good is it if the above examples are allowed to go undefended?

Here(link below)is the writer who claims to have written the above storyline from Heroes. Notice he is holding a handful of comics and laughing about how he reads them in between writing sessions for "inspiration". My copyright protection was suppose to protect me from this sort of behavior.


I call on the judges of these cases, the attorneys, and NBC... Do The Right Thing. Just because you can get by with the copyright infringement of other's work, does not mean you should. Credit those who you know deserve it. All of you have a chance to change this injustice. Please do.

Might I add to you Mr. Miller, take notice that I was not even allowed to enter any evidence because we never made it to summary judgment. When facing NBC, who again has not lost a copyright infringement case in 20 years in the 2nd and 9th circuit according to Steven T. Lowe's Death of Copyright, we never had our day in court. Again, I have copyright protection that should mean something, should it not? Once again, the link with what I had an issue with for the record.


Posted by: Jazan Wild | Jun 7, 2012 4:07:48 PM

Dean, thanks for the information. Here is some language from Kremen v. Cohen, 2011 WL 6113198 (N.D.Cal 2011), that is consistent with your point:

The Court may take judicial notice of matters that are either “generally known within the territorial jurisdiction of the trial court” or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Under the doctrine of incorporation by reference, the Court may take judicial notice of documents attached to or referenced in the Complaint. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.2010); Lee v. City of L.A., 250 F.3d 668, 688–89 (9th Cir.2001); see also Fed.R.Civ.P. 10(c).

Posted by: Colin Miller | Jun 7, 2012 5:19:43 PM

Jazan, I want to thank you sincerely for the time you took to read my post and leave your thoughtful comment. I am certainly no copyright expert, but after perusing some of the documents that you have posted, there certainly seem to be some strong similarities between the two works. I am also shocked to learn about the 60 to 0 statistic. I will definitely be keeping tabs on your lawsuit, and please let me know when you have an update. I will make it a point to get a copy of "Carnival of Souls," which seems like a fascinating work.

Posted by: Colin Miller | Jun 7, 2012 5:27:08 PM

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