MESKILL, Circuit 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.
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, "IT'S A BIRD! IT'S A PLANE! IT'S RALPH HINKLEY!" 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.
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.
To establish a claim for copyright infringement, a plaintiff "must show ownership of a valid copyright and copying by the defendant." Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir. 1977). Plaintiffs' copyrights and their validity were not contested for the purposes of the preliminary injunction motion, leaving only the issue of copying to be determined.
Because direct evidence of copying is ordinarily unavailable, a plaintiff is permitted to demonstrate copying through indirect proof. Thus, it is well settled that copying may be inferred where a plaintiff establishes that the defendant had access to the copyrighted work and that the two works are substantially similar. See Novelty
"[T]he determination of the extent of similarity which will constitute a substantial and hence infringing similarity presents one of the most difficult questions in copyright law, and one which is the least susceptible of helpful generalizations." 3 Nimmer on Copyright § 13.03[A], at 13-16 (rev.ed.1980) (emphasis in original). The general test for determining substantial similarity is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966). In the case of literary works, it is axiomatic that copyright protection only extends to the expression of the author's idea, not to the idea itself. Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904 (1899); Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
45 F.2d at 121 (citations omitted). Quite accurately, Judge Hand noted that "[n]obody has ever been able to fix that boundary, and nobody ever can." Id.
This is not the first occasion we have been called upon to decide this issue in an action involving the copyrights in the famous character Superman. See Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940); see also National Comics Publications, Inc. v. Fawcett Publications, Inc., 191 F.2d 594 (2d Cir. 1951). In Bruns, we held that while "the pictorial representations and verbal descriptions of `Superman'" presented more than "a benevolent Hercules" and thus constituted "proper subjects of copyright," we cautioned
191 F.2d at 600 (emphasis added).
After reviewing the parties' works in this case, Judge Motley concluded that "[a] comparison of the characters Ralph Hinkley and Superman and their respective stories reveals ... that they are so dissimilar as to preclude a finding of substantial similarity." A. 541. The plaintiffs contend that Judge Motley's statement betrays a fundamental misunderstanding of copyright law. They assert that Judge Motley incorrectly focused upon the differences rather than the similarities between the works. The plaintiffs further claim that, in placing undue emphasis upon the disparities, Judge Motley disregarded what otherwise would be deemed substantial similarity between the works. We disagree.
While the works of plaintiffs and defendant share common ideas, themes, and general imagery, we believe that the similarities are not sufficiently particular and concrete so as to represent an appropriation of the protected expression of the plaintiffs' works. In arriving at this determination we also conclude that Judge Motley properly considered the great differences between the works in analyzing whether the parties' works were substantially similar.
Plaintiffs offer an extensive list of similarities between their works and those of the defendants to establish substantial similarity; for example, both superheroes are shown performing feats of miraculous strength; both wear tight acrobatic costumes; both do battle with villains; both fly with their arms extended in front of them and cape billowing behind; both are impervious to bullets; both have X-ray type vision; both have fantastic hearing and sight; both fly gracefully in the night sky past a city's lit skyscrapers; both lift a car with one hand; both lead a double life; both heroes' power emanates from another planet; and both are drawn to a mysterious spot to meet an extraterrestrial being. We find it unnecessary to recount several other purported similarities between the works suggested by the plaintiffs, since a close examination of the items already listed reveals the fallacy of their argument.
Though it is true that both heroes perform feats of miraculous strength, that is too common and general a characteristic or theme to even approach the degree of concreteness and particularity deserving of copyright protection. In any event, the expression of the general idea of a hero with miraculous strength in Hero and Superman substantially differs. In Hero, Ralph Hinkley derives his power exclusively from his magic suit, whereas in Superman, the hero's strength is a natural attribute of his extraterrestrial
We do not interpret Judge Motley's opinion to suggest that sufficient differences between two works will preclude a finding of substantial similarity notwithstanding the presence of similarities that would otherwise be sufficient to support such a finding. Judge Motley's opinion indicates that she properly focused upon "the similarities not the differences," A. 541, and simply adhered to the logic inherent in our statement in Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980), that "numerous differences tend to undercut
Finally, plaintiffs cannot seriously contend that the pattern of scenes, sequence of incident, principal characters, or the general theme between Hero and "Superman, The Movie," for example, are substantially similar. Quite to the contrary, as was the case in Reyher v. Children's Television Workshop, supra, 533 F.2d at 91-92 the "total concept and feel" of the two works greatly differ. The Superman works portray a benevolent superhuman who seeks to achieve noble goals through the exercise of innate superpowers while at the same time trying to maintain the secrecy of his true identity in order to occupy a position in society as an ordinary person. Hero on the other hand, is a "mirror image" of the Superman character. Hero depicts a typical, young American man with common everyday problems who attempts to cope with the impact upon his life caused by the superhuman powers that are foisted upon him by unidentified alien beings. We conclude that plaintiffs have attempted to demonstrate substantial similarity between the parties' works "by an analysis which alters the actual sequence or construction of plaintiff[s'] work in order to achieve a juxtaposition that makes for greater similarity with defendant[s'] work." 3 Nimmer, supra, § 13.03[E] at 13-48.
We do, however, believe it prudent to note our reservations in connection with Judge Motley's discussion of the parody defense. Suffice it to say that while the defense might be applicable to those isolated instances in which a nearly identical line from the plaintiffs' script, or express reference to one of the plaintiffs' characters was made, we question whether the defense could be used to shield an entire work that is substantially similar to and in competition with the copyrighted work.
Finally, Judge Motley also correctly determined that plaintiffs' unfair competition claims were insufficient to warrant the issuance of a preliminary injunction. Judge Motley did not abuse her discretion in determining that it was unlikely that the public would be confused as to the origin of Hero.
The order of the district court is affirmed and this action is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs of this appeal.
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).