Warner Bros. Inc. v. American Broadcasting Companies, Inc.

Warner Bros. Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231 (2d Cir. 1983), the case of Superman v.The Greatest American Hero, is the third case in a Second Circuit trilogy of 20th century copyright infringement cases in which the proprietors of Superman copyrights sued other companies for publishing fictional exploits of a cape-wearing superhero. Although the plaintiffs were successful in the first two cases, Superman v. Wonderman and Superman v. Captain Marvel, they were completely unsuccessful in Superman v.The Greatest American Hero. The court (in an opinion by Circuit Judge Newman) held that “as a matter of law . . . '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.”

In January 1981, the American Broadcasting Company (ABC) issued press releases and began to run promotional spots for the TV premiere of The Greatest American Hero, which had been created and produced by Stephen J. Cannell Productions. The protagonist of the TV show was Ralph Hinkley, a young Los Angeles high school teacher whose physical attributes are not those of a superhero: he is of medium height, has a scrawny build, has blond curls, and is clumsy.

Hinkley does have similarities, however, to Superman in that, for example, both superheroes: perform feats of miraculous strength; wear tight acrobatic costumes; do battle with villains; fly with their arms extended in front of them and cape billowing behind; are impervious to bullets; have X-ray type vision; have fantastic hearing and sight; fly gracefully in the night sky past a city's lit skyscrapers; lift a car with one hand; lead a double life; benefit mankind by fighting evil-doing villains.

But, in addition to Hinckley’s scrawniness and clumsiness, he has other significant differences from Superman. For example: Hinkley derives his power exclusively from a magic suit that an alien gave him, but Superman's strength is a natural attribute of his extraterrestrial origin. Superman wears a blue leotard with red briefs, boots and cape, while Hinkley wears a red leotard, no boots, and a black cape. “Superman has mastered the art of self-propelled flight and accomplishes the feat with grace and verve. Ralph Hinkley, on the other hand, seems to be terrified when flying and each time, without fail, crash-lands. . . . As to the heroes' imperviousness to bullets, while the trait is shared, the expression of the concept differs dramatically. Ralph Hinkley cringes and cowers in the face of gunfire, whereas Superman boldly holds his ground when being fired upon.” When flying, Hinckley (unlike Superman) is quite inept: in the pilot episode he “has difficulty steering, barely avoids colliding with a fire escape, and finally crashes into a brick wall, knocking himself out.”

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