Warner Bros., Inc. v. American Broadcasting Companies, Inc.
| Decision Date | 17 July 1981 |
| Docket Number | D,No. 1366,1366 |
| Citation | 654 F.2d 204 |
| Parties | , 1981 Copr.L.Dec. P 25,284, 7 Media L. Rep. 1973 WARNER BROS. INC., Film Export, A.G., and DC Comics, Inc., Plaintiffs- Appellants, v. AMERICAN BROADCASTING COMPANIES, INC., Defendant-Appellee, v. STEPHEN J. CANNELL PRODUCTIONS, Third-Party Defendant-Appellee. ocket 81-7192. |
| Court | U.S. Court of Appeals — Second Circuit |
Melville B. Nimmer, Beverly Hills, Cal. (Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Beverly Hills, Cal., of counsel), for plaintiff-appellant Warner Bros. Inc.
Philip R. Forlenza, New York City (Hawkins, Delafield & Wood, New York City, of counsel), for defendant-appellee American Broadcasting Companies, Inc.
Weiss, Dawid, Fross, Zelnick & Lehrman, New York City, of counsel, for plaintiffs-appellants DC Comics, Inc. and Film Export, A.G.
Townley & Updike, New York City, of counsel, for third-party defendant-appellee Stephen J. Cannell Productions.
Before MOORE and MESKILL, Circuit Judges and MacMAHON, District Judge. *
This is an appeal from an order entered in the United States District Court for the Southern District of New York, Motley, J., which denied a motion made by plaintiffs, Warner Bros. Inc., Film Export, A.G., and DC Comics, Inc., for a preliminary injunction and temporary restraining order to enjoin the defendant, American Broadcasting Companies, Inc. (ABC), from (1) broadcasting certain promotional television spots relating to its series entitled "The Greatest American Hero" (Hero); (2) broadcasting the premiere of Hero; and (3) broadcasting any episode of Hero prior to affording the plaintiffs an adequate opportunity to examine the work and to seek appropriate relief. Plaintiffs alleged that ABC's Hero and related promotional campaign infringed their copyrights in the popular character Superman in violation of 17 U.S.C. § 501(b) (1976). Plaintiffs also alleged that Hero was likely to confuse the public into believing that Hero was either made, sponsored, or licensed by plaintiffs, and thus constituted unfair competition in violation of state law and § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1976). Judge Motley denied the motion, holding that plaintiffs had failed to carry their burden of demonstrating either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in their favor. For the reasons set forth below, we affirm.
Plaintiffs are the owners of the copyrights and other rights in the character Superman and the works embodying him, including comic books depicting the cartoon character Superman; television series depicting Superman in animated and unanimated features; and the motion picture "Superman, The Movie." The plaintiffs have enjoyed remarkable commercial success for over forty years; they have derived substantial revenue from both domestic and international commercial exploitation of Superman.
The character "evolved" over the years in comic strips, cartoons, television shows, and motion pictures under the ostensible protection of copyright. A glance at the record The entire fictional biographical account of Superman is retold in "Superman, The Movie." The character is depicted as a superhuman being from a fictional planet, Krypton, who was sent to earth to escape the fatal consequences of the imminent destruction of his planet. Superman is found by the Kents, a midwestern couple, who name the boy Clark and raise him as their son in a bucolic setting. The Kents instill in Clark a strong sense of moral conviction and faith in the "American way," and counsel the boy not to reveal his superhuman powers to anyone. Clark matures into a tall, well-built, dark-haired, and strikingly handsome young man. Ultimately, Clark leaves his pastoral home, finding himself drawn by a mysterious force to a place where he encounters the image of his deceased father, Jor-El. There, Jor-El informs him of his true identity and instructs him to use his superpowers to protect the world from evil. Clark emerges from his fantastic encounter with Jor-El wearing for the first time his Superman costume a skin-tight blue leotard with red briefs, boots and cape, and a large "S" emblazoned in red and gold upon the chest and cape.
for example, reveals that originally Superman was only capable of leaping in the position of a hurdler over tall buildings, while in a recent film version, "Superman, The Movie," the character is shown demonstrating an apparently later-acquired power of self-propelled flight; Superman assumes a more sophisticated and streamlined style, flying in the prone position, with arms extended in front of him and red cape billowing in the wind.
Clark subsequently obtains a position as a reporter for the Daily Planet, but reveals his true identity to no one, assuming instead the appearance of a shy, bumbling, but well-intentioned young man. There he soon meets and becomes infatuated with a beautiful colleague, Lois Lane. Later he appears clad in his Superman regalia to perform amazing feats of strength and courage which immediately attract wide attention, acclaim, and the amorous interest of Lois Lane.
Superman is continually confronted by villains in all of his adventures, but eventually overcomes all evil opponents by exploiting his superpowers of self-propelled flight, imperviousness to bullets, blinding speed, X-ray vision, fantastic hearing, and seemingly immeasurable strength. He fights for "TRUTH, JUSTICE AND THE AMERICAN WAY" and is often described as "FASTER THAN A SPEEDING BULLET," "MORE POWERFUL THAN A LOCOMOTIVE," and "ABLE TO LEAP TALL BUILDINGS IN A SINGLE BOUND." A. 518. For decades, startled pedestrians in comic strips have shouted, "LOOK, UP IN THE SKY ... IT'S A BIRD ... IT'S A PLANE ... IT'S 'SUPERMAN'!"
In January 1981, defendant ABC issued press releases and began to run promotional spots for the premiere of Hero. Hero was created and produced by Stephen J. Cannell Productions (Cannell), which was impleaded pursuant to a contractual indemnification agreement by ABC in this action as a third-party defendant.
The protagonist in Hero, Ralph Hinkley, is portrayed as a young high school teacher who is trying to cope with a recent divorce, a resultant dispute over the custody of his son, and the strain that his domestic problems place upon his work and his relationship with an attractive girlfriend. Hinkley's physical attributes are far from extraordinary; he is of medium height, and has a scrawny build and curly blond hair. According to the testimony of his creator, Hinkley is intended to typify the "ordinary guy."
In the premiere episode of Hero, Hinkley's van breaks down en route to a high school field trip in the desert. While walking along a road in search of help, Hinkley is nearly run over by an out-of-control automobile driven by Bill Maxwell, an American undercover agent. Maxwell has been searching the desert for his missing FBI partner who, unbeknownst to Maxwell, has been murdered by a band of extremists. Maxwell and Hinkley are suddenly approached by a brightly glowing spaceship from which descends the image of Maxwell's While in the privacy of his bedroom the next day, Hinkley holds the suit in front of himself before a mirror and says, Shortly thereafter he states cynically, "What the world needs is another flying superhero." Hinkley later reveals his newly acquired powers to his girlfriend and begs her understanding. Eventually, he uses his powers to overcome a villain's plan to destroy a portion of southern California.
deceased partner. Hinkley is handed a magical caped costume a red leotard with a tunic top, no boots, and a black cape which, when worn, endows him with fantastic powers. Unfortunately, however, Hinkley loses the instruction book that accompanied the intergalactic gift and is left only with the verbal instruction that he should use his powers to save the world from self-destruction. Hinkley grudgingly accepts the mission after being importuned to do so by Maxwell.
Although Hinkley ultimately wins the battle with his evil opponent, he does not achieve this goal with the majestic grace, strength, skill, and panache characteristic of Superman. For example, when flying he hollers in fright, and invariably crash-lands, rather than landing with the aplomb of Superman. On one occasion while flying, Hinkley crashes into a building, is nearly knocked unconscious, and then is unceremoniously arrested for vagrancy. And though his magical costume renders him impervious to bullets, when being shot at by villains Hinkley cringes and cowers. Finally, after winning the day in his first adventure, Hinkley shakes the hand of his partner, Maxwell, but unfortunately fractures it, neglecting to restrain his super strength.
On March 16, 1981, two days before the scheduled broadcast of the premiere of Hero, plaintiffs filed their complaint seeking the injunctive relief previously described. Judge Motley viewed the promotional spots, the premiere episode of Hero, and "Superman, The Movie." The district judge also heard testimony concerning the creation and production of Hero and the promotional spots, and the characteristics of the superhero genre. Judge Motley concluded that the parties' works were not substantially similar, and that even if they were, Hero was a parody of Superman and therefore protected under the fair use doctrine. The district court also determined that it was unlikely that the public would be confused as to the origin of Hero, and that, therefore, preliminary injunctive relief was not warranted in connection with the plaintiffs' unfair competition claims. Thus, the defendant was permitted to televise the premiere of Hero on March 18, 1981 as scheduled. 1
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