Warner Bros., Inc. v. AMER. BROADCASTING, ETC.

• Citation: 530 F. Supp. 1187
• Decision Date: 20 January 1982
• Docket Number: No. 81 Civ. 1551 (CBM).,81 Civ. 1551 (CBM).
• Parties: WARNER BROS., INC., Film Export, A.G., and DC Comics, Inc., Plaintiffs, v. AMERICAN BROADCASTING COMPANIES, INC., Defendant. AMERICAN BROADCASTING COMPANIES, INC., Third-Party Plaintiff, v. STEPHEN J. CANNELL PRODUCTIONS, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

530 F. Supp. 1187

WARNER BROS., INC., Film Export, A.G., and DC Comics, Inc., Plaintiffs, v. AMERICAN BROADCASTING COMPANIES, INC., Defendant.

AMERICAN BROADCASTING COMPANIES, INC., Third-Party Plaintiff, v. STEPHEN J. CANNELL PRODUCTIONS, Third-Party Defendant.

No. 81 Civ. 1551 (CBM).

United States District Court, S. D. New York.

January 20, 1982.

COPYRIGHT MATERIAL OMITTED

Weiss, Dawid, Fross, Zelnick & Lehrman by Allan Zelnick, Richard Lehv, New York City, for plaintiffs Film Export, A.G. and DC Comics, Inc.; Bruce S. Kaplan, New York City, of counsel.

Weissman, Wolff, Bergman, Coleman & Schulman by John Schulman, Los Angeles, Cal., for plaintiff Warner Bros., Inc.; Dean A. Ziehl, Los Angeles, Cal., of counsel.

Hawkins, Delafield & Wood by Philip R. Forlenza, Laura V. Jones, New York City, for defendant American Broadcasting Companies, Inc.

Townley & Updike by Richard Barnes, Douglas C. Fairhurst, Robert L. Raskopf, Mary D. Faucher, New York City, for third-party defendant Stephen J. Cannell Productions.

OPINION

MOTLEY, District Judge.

In this opinion, the court grants summary judgment for defendants, holding, as a matter of law, that defendants' works (consisting of a two-hour premiere television show and seven one-hour television episodes) are not substantially similar to plaintiffs' works (consisting of two movies, three television shows, and approximately twenty comic books), and that there is no likelihood of confusion between the parties' works.

Plaintiffs, owners of the copyrighted motion pictures, television shows and comic books featuring the well-known character Superman, are suing defendants, the creators and broadcasters of the television series featuring a superhero named Ralph Hinkley and entitled The Greatest American Hero (TGAH). Plaintiffs previously sought a temporary restraining order and preliminary injunction enjoining the broad-cast of the pilot of TGAH. This court denied plaintiffs' application. Warner Bros., Inc. v. American Broadcasting Companies, Inc., 523 F.Supp. 611 (S.D.N.Y.1981), 211 U.S.P.Q. 51 (Injunction opinion). The Court of Appeals for the Second Circuit upheld the denial of interim relief after viewing, as this court had, plaintiffs' first movie ("Superman — The Movie"), several of plaintiffs' comic books, and defendants' pilot program. Warner Bros., Inc. v. American Broadcasting Companies, Inc., 654 F.2d 204 (2d Cir. 1981) (Circuit opinion). For a more detailed background discussion of the nature of the characters and works involved in this litigation, the reader is referred to the above-cited opinions.

At a pre-trial conference following the Second Circuit's decision in their favor, defendants moved for summary judgment. The motion was denied on the ground that the court could not determine whether a reasonable jury could find the issue of substantial similarity in favor of plaintiffs because the court, at that juncture, had not seen all of plaintiffs' or defendants' works in question.

On November 30, 1981, the day trial was scheduled to begin in this action, the court began a pre-trial conference with the parties. After several days of reviewing the proposed trial evidence, the conference finally entailed an item-by-item review of all the evidence the parties proposed to introduce at trial and the court's rulings thereon. The court decided to view plaintiffs' movie "Superman II" and the defendants' seven additional episodes of TGAH in connection with its reconsideration of defendants' motion for summary judgment. After the review and extensive oral argument, the court again denied the motion. At the conclusion of the two-week-long pretrial conference, the court once again decided to reconsider defendants' motion for summary judgment on plaintiffs' claim of alleged copyright infringement. The court this time granted the motion and advised the parties that it would write a memorandum opinion and certify the question of substantial similarity to the Court of Appeals pursuant to 28 U.S.C. § 1292(b). Now, however, upon reconsideration of all the evidence and the relevant legal standards, the court has decided to grant summary judgment in favor of defendants as to both the copyright claim and the unfair competition claims. The court holds that, as a matter of law, there is no substantial similarity between defendants' works and plaintiffs', or between defendants' and plaintiffs' main characters. The court further holds that there is no likelihood of confusion and, therefore, all of plaintiffs' unfair competition claims are without merit.

SUBSTANTIAL SIMILARITY STANDARD

In this Circuit, a defendant's motion for summary judgment on a copyright claim may be granted "if, after assuming copying, the Court finds that any similarity between the works is insubstantial." Musto v. Meyer, 434 F.Supp. 32, 36 (S.D.N.Y.1977), aff'd, 598 F.2d 609 (2d Cir. 1979). In addition, where there are similarities between the works, but "the similarities pertain solely to noncopyrightable material, summary judgment is appropriate." Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 915 (2d Cir. 1980). In the instant opinion the court assumes that defendants had access to all of plaintiffs' works and copied from them. The court concludes, however, after viewing all of plaintiffs' and defendants' works in contention, that "both as to incident and character, the defendants took no more ... than the law allowed." Nichols v. Universal Pictures Corporation, 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931).

To resolve the issue of substantial similarity, the court must distill the protected parts of a work from the unprotected. This is because, as stated in a previous opinion involving Superman, "a copyright never extends to the `idea' of the `work,' but only to its `expression,' and no one infringes, unless he descends so far into what is concrete as to invade that `expression.'" National Comics Publications v. Fawcett Publications, 191 F.2d 594, 600 (2d Cir. 1951).

This court concludes that what defendants took from plaintiffs' works and incorporated into TGAH were unprotected ideas. Chiefly, what was taken was the idea of a superhero who fights evil — a benevolent super-human. In this instance, a super-man. Encompassed within the idea of a super-man are the usual human attributes of sight, hearing, strength, etcetera, which are magnified far beyond human capacity, together with abilities, such as the ability to fly, which are not human attributes, but which man has long desired.

IDEAS COMMON TO THE WORKS

Both main characters have the following attributes:

Super-strength. A magnification of the human abilities to lift, throw and move objects physically. This ability is common to Superman and Ralph Hinkley. Note that Mr. Hinkley only possesses this ability and his other superpowers while wearing his suit, whereas plaintiffs' character has his powers at all times, as displayed by Clark Kent in "Superman II" rescuing Lois Lane near Niagara Falls, and in the television programs viewed by the court (in one episode, Clark Kent bends and straightens an iron bar to demonstrate his super-strength to a blind girl). Consequently, when discussing the common ideas, the court's references to Hinkley's powers are to Hinkley inside his super-suit, while the references to Superman include Superman both in and out of his costume.

Super-hearing. A magnification of the human ability to hear. Common to Superman and Hinkley.

Super-vision. Encompasses both the ability to see far distances and the ability to see through objects. Common to Superman and Hinkley.

Super-speed. The ability to run, or do other such normal activities at a greatly accelerated speed. Common to Superman and Hinkley.

Super-breath. The ability to blow super-hard (perhaps first popularized by the Big Bad Wolf in "Three Little Pigs"). Common to Superman and Hinkley.

Invulnerabilty. Superman and Hinkley are both invulnerable to blows (see: Achilles) and bullets.

All of the above similarities involve human abilities and attributes magnified greatly.

The ability to fly. While this is not the magnification of a natural human attribute, it remains a non-protectible idea. It is neither concrete enough to be protected nor original to plaintiffs. It is also a prime example of a power which Hinkley never masters, even with his suit on.

It is important to note how the superpowers and super-beings are perceived by the characters in the different works. In the Superman works, none of the characters, least of all the main character, finds the idea of a person with super-human qualities implausible. The existence of a super-being is quite acceptable in the Superman works, where the entire world seems to know of Superman, and believe in him. In TGAH, however, not only do very few people know of the super-being, but the great majority of people do not believe such a being could exist. Thus, in one of defendants' episodes, "The Hit Car", it was revealed that when two of the villains told people they saw a man fly, they were sent to a mental hospital. (See also the discussion with respect to the costumes the main characters wear, infra.)

The court notes, but does not find controlling, that there are some powers which Superman appears to have that Hinkley does not. One example is the power to reverse time (shown in "Superman — The Movie"). Another example is the power to induce amnesia by kissing Lois Lane (demonstrated in "Superman II").

Other ideas common to the works:

Close encounters with alien beings. Both Hinkley and Superman have contact of a sort with alien beings. However, as is the case with most or all of the commonalities involved in the works, this can only be considered a common idea in the most general way. Superman is himself super-human, and for him contact with beings or images of beings from other planets is to be expected. He sees, in his Fortress of Solitude, long-departed

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