720 F.2d 231 (2nd Cir. 1983), 850, Warner Bros. Inc. v. American Broadcasting Companies, Inc.

Docket Nº:850, Dockets 82-7152, 82-7794.
Citation:720 F.2d 231
Party Name:584 WARNER BROS. INC., Film Export, A.G., and DC Comics Inc., Plaintiffs- Appellants-Cross-Appellees, v. AMERICAN BROADCASTING COMPANIES, INC. and Stephen J. Cannell Productions, Defendants-Appellees-Cross-Appellants.
Case Date:October 06, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 231

720 F.2d 231 (2nd Cir. 1983)

584

WARNER BROS. INC., Film Export, A.G., and DC Comics Inc.,

Plaintiffs- Appellants-Cross-Appellees,

v.

AMERICAN BROADCASTING COMPANIES, INC. and Stephen J. Cannell

Productions, Defendants-Appellees-Cross-Appellants.

No. 850, Dockets 82-7152, 82-7794.

United States Court of Appeals, Second Circuit

October 6, 1983

Argued March 16, 1983.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Stuart Robinowitz, New York City (Steven B. Rosenfeld, Kenneth Roth, Andrew J. Frackman, and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on brief), for plaintiffs-appellants-cross-appellees.

Richard J. Barnes, New York City (Mary D. Faucher and Townley & Updike, New York City, on brief), for defendant-appellee-cross-appellant Stephen J. Cannell Productions.

Laura V. Jones, New York City (Philip R. Forlenza and Hawkins, Delafield & Wood, New York City, on brief), for defendant-appellee-cross-appellant American Broadcasting Companies, Inc.

Before MANSFIELD, MESKILL and NEWMAN, Circuit Judges.

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NEWMAN, Circuit Judge:

The primary issue raised by this appeal is whether as a matter of law the fictional character Ralph Hinkley, the principal figure in a television series, "The Greatest American Hero," is not sufficiently similar to the fictional character Superman, the hero of comic books, television, and more recently films, so that claims of copyright infringement and unfair competition may be dismissed without consideration by a jury. The appeal is from a January 22, 1982, judgment of the District Court for the Southern District of New York (Constance Baker Motley, Chief Judge) dismissing claims of plaintiffs Warner Bros., Inc., Film Export, A.G., and DC Comics, Inc. against defendant American Broadcasting Companies, Inc. (ABC) and third-party defendant Stephen J. Cannell Productions upon the granting of defendants' motion for summary judgment. Defendants cross-appeal from the denial of their motion to amend the judgment to award attorney's fees and additional costs beyond those allowed under Fed.R.Civ.P. 54(d). For the reasons that follow, we affirm the judgment.

I.

Many of the significant facts are set out in our prior opinion affirming the denial of plaintiffs' motion for a preliminary injunction. Warner Bros. Inc. v. American Broadcasting Companies, Inc., 654 F.2d 204 (2d Cir.1981). Plaintiffs own the copyrights in various works embodying the character Superman and have thereby acquired copyright protection for the character itself. See Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir.1940). Since the creation of Superman in 1938, plaintiffs have exploited their rights with great success, portraying Superman in several media and licensing the character for a variety of merchandising purposes. Through plaintiffs' efforts, Superman has attained an extremely high degree of exposure and recognition.

In 1978, building on previous Superman works, plaintiff Warner Bros., Inc. released a motion picture entitled "Superman, The Movie" (Superman I ) and more recently two sequels. Our prior opinion in this case summarizes the manner in which Superman I recounts the Superman legend:

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.

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

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hearing, and seemingly immeasurable strength.

654 F.2d at 206.

In Superman I and in previous Superman works, Superman is portrayed as a brave, fearless hero, endowed with superhuman powers. His strength, speed, vision, and hearing far exceed the physical capabilities of mere mortals. He is impervious to bullets. In early works, Superman displayed extraordinary leaping ability, see Detective Comics, Inc. v. Bruns Publications, Inc., supra, 111 F.2d at 433; in later works this skill had become the power of flight, as Superman is regularly seen soaring through the sky, arms stretched ahead, then landing agilely on his feet ready for action. Superman engages in a series of exploits against assorted criminals and villains who pose threats not only to public safety but also to national security and even world peace. Regardless of his adversary, Superman always prevails.

Descriptions of Superman and lines of dialogue in the Superman works have become as well known as the Superman character. He is described as "faster than a speeding bullet," "more powerful than a locomotive," and "able to leap tall buildings in a single bound," and he always fights for "truth, justice, and the American way." From the early comic books continuing through the modern films, startled pedestrians have shouted, "Look! Up in the sky! ... It's a bird! ... It's a plane! ... It's Superman!"

The substantial commercial success of Superman I and the attendant publicity prompted many requests for licenses permitting use of the Superman character in connection with the merchandising of toys, greeting cards, apparel, and other products. It also led ABC to seek a license for production of a television series about "Superboy" based on the early adventures of Superman. Plaintiffs, who were planning to make their own sequels and derivative works, refused ABC permission to proceed with its proposed project.

Unable to obtain this license, ABC assigned to Cannell, the principal of the third-party defendant production company, 1 the task of creating a "pilot" program for a TV series involving a superhero. Cannell produced a program, and subsequently a weekly series, entitled "The Greatest American Hero" (Hero ), which he described as being about "what happens when you [the average person] become Superman." Hero's protagonist, Ralph Hinkley, was given attributes intended to identify him as an "ordinary guy." Hinkley is portrayed as a young high school teacher attempting to cope with a recent divorce, a dispute over the custody of his son, and the strain that his domestic problems place upon his work and his relationship with his girlfriend. Although Hinkley is attractive, his physical appearance is not imposing: he is of medium height with a slight build and curly, somewhat unkempt, blond hair.

In the pilot show, as described on the prior appeal:

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 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

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accepts the mission after being importuned to do so by Maxwell.

654 F.2d at 206-07.

Hinkley's magical costume endows him with superhuman speed and strength, the ability to fly, imperviousness to bullets, and what Cannell calls "holographic vision," the power to perceive sights and sounds occurring out of his line of vision. Partly for lack of the instruction book that accompanied the costume and partly because some of his character traits remain dominant when he is wearing the suit, Hinkley as a superhero is not an unqualified success. He uses his superpowers awkwardly and fearfully. When flying, Hinkley shouts with fright and makes crash-landings, sometimes crumpling in a heap or skidding nearly out of control to a stop. Though protected from bullets by his costume, Hinkley cringes and cowers when shot at by villains.

In the pilot episode of Hero, the reaction of the first man who sees Hinkley in his costume, which he has put on in a gas station washroom, is fear that...

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