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A Manhattan federal judge has dismissed an “absurd” copyright infringement claim against the creators of the popular TV series “Heroes” and NBC Universal. Southern District Judge Denise Cote said in Mallery v. NBC Universal, 07 Civ. 2250, that the line between mere “ideas” and protected “expression” is “famously difficult to fix precisely.” Here, however, she concluded that “Heroes” had not come close to crossing that line. The decision will be published today. “Nearly every instance of alleged similarities between Heroes and the plaintiffs’ work relates to unprotectable ideas rather than protectable expression, and viewed more broadly, the ‘total concept and feel’ of these works is profoundly different,” she said. The case illustrates how hit movies and TV shows often attract lawsuits, although few succeed. “People believe, wrongly, that even if the germ of an idea is the same it constitutes what the lay person would call plagiarism,” said Marcia Paul, a partner at Davis Wright Tremaine who represented NBC. “But the [legal] standard is substantial similarity of protectable expression.” The plaintiffs are Clifton Mallery (who is also known as Enjai Omaa Eele) and Amnau Karam Eele, so-called “divination artists” who dubbed themselves “The Twins.” Divination is defined in Webster’s Collegiate Dictionary as the art of foretelling future events by interpreting omens or by the aid of supernatural powers. The plaintiffs alleged in their lawsuit that NBC had had access to their creations. They claimed writers from NBC’s TV show “Crossing Jordan” attended an event at Hunter College in April 2005 at which their short film “The Letter” was screened, their painting series “Envious of America” was exhibited and excerpts from their novel “The Twins” was made available. They said they sent portions of their book and short film to a corporate affiliate of NBC Universal and NBC Universal Television Studio. Mallery and Eele noted that both their book and “Heroes” contain characters who are “minorities” and who have the ability to “paint the future.” They also pointed out that both characters paint in oil on large canvases and create depictions of “two landmark New York City buildings being destroyed.” In the book it is the World Trade Center and in the series it is the Chrysler Building. They claimed that in both their book and in “Heroes” the artists paint a bus being destroyed in the future, and that their predictions are validated in a newspaper article. In each the character attempts to stop the destruction of the buildings. But the judge held that these allegations could not form the basis for a copyright infringement claim. “On the most general level, a ‘minority artist’ who has the ability to paint the future is an ‘idea’ that is not protected under copyright law,” she said. Judge Cote said that painting a future in which tragic and destructive events take place, having a prediction confirmed by a newspaper report and making an attempt to prevent a tragic event that has been predicted are “scenes a faire,” elements that necessarily follow from the choice of setting or situation and do not enjoy copyright protection. The judge blasted Mallery and Eele’s argument that because both “Heroes” and “The Letter” use “close up eye images” and included characters who are twins NBC had committed infringement. “Needless to say, close-ups of eyes and the depiction of two people simultaneously on screen � or, as the plaintiffs put it, the ‘twinning’ of characters � are not examples of protectable expression,” she said. “The absurd results that would follow from holding otherwise need not be enumerated.” The judge concluded that no lay observer could find that the works as a whole were substantially similar. “While, on the most abstract level, both of these works concern the prevention of a tragic and violent event in New York, the ‘two stories are not similar in mood, details or characterization’ and, indeed, differ in nearly every relevant way,” she said. Mallery and Eele were represented by John Coleman Jr., a partner at Friedberg Cohen Coleman & Pinkas in Manhattan. Coleman declined to comment. Paul said NBC will seek attorney’s fees, but declined to specify how much it will be asking. It has until Dec. 21 to file a motion requesting costs and fees. Beth Bar is a reporter with the New York Law Journal, a Recorder affiliate.

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