As anyone above the age of thirty may recall, in 1983 there was popular television show that ran on ABC called the Greatest American Hero. It involved the misadventures of Ralph Hinkley, an ordinary guy who was given a superhero suit in the middle of the desert by aliens. Unfortunately, he loses the instruction suit and spends many episodes trying to learn how to fly. If I recall correctly, in some of the early episodes he chooses to run because he keeps crashing when he flies. (If you want to see episodes of the show, they are not on Yahoo TV, but I have recently seen boxed sets of the 3 year series for sale on various websites).
As noted by the Second Circuit, there were a few similarities between the Greatest American Hero and Superman. The court explained that:
The Hero series contains several visual effects and lines that inevitably call Superman to mind, sometimes by way of brief imitation, sometimes by mention of Superman or another character from the Superman works, and sometimes by humorous parodying or ironic twisting of well-known Superman phrases. Hinkley's suit invests him with most of Superman's powers, and the suit, like Superman's, is a tight-fitting leotard with a chest insignia and a cape. Their outfits differ in that Superman wears a blue leotard with red briefs, boots, and cape, while Hinkley's costume is a red leotard with a tunic top, no boots, and a black cape. In one scene, as Hinkley is running at super speed, smoke emerges from his footsteps, and the sound of a locomotive is heard. A similar scene occurs in Superman I, though even without seeing the movie it would be difficult not to be reminded by the Hero scene of Superman, who is regularly described as “more powerful than a locomotive.” When Hinkley first views himself in a mirror holding his costume in front of him, he says, “It's a bird ... it's a plane ... it's Ralph Hinkley.” The youngster, Jerry, watching Hinkley's unsuccessful first effort to fly, tells him, “Superman wouldn't do it that way.” In a scene with his girlfriend, who is aware of the powers that come with the magic costume, Hinkley says, “Look at it this way ... you're already one step up on Lois Lane. She never found out who Clark Kent really was.”
In suing ABC for copyright infringement and unfair competition, the Superman creators indicated that there were three specific instances involved with the launch of the Greatest American Hero that were purportedly infringements of the Superman franchise copyright, these included:
First, some of the “promos” show Hinkley flying (with his lantern) in outerspace, with the earth as a background; plaintiffs contend this is an attempt to copy a scene from Superman I in which Superman performs exploits in outerspace. Second, some of the “promos” show the Statue of Liberty, which plaintiffs contend is an attempt to copy a movie scene of Superman flying around the Statue. Third, in one of the “promos” Hinkley is shown watching a television set on which appears a brief clip from the television cartoon “Superfriends” showing the animated cartoon figure of Superman. In addition, plaintiffs assert that a special videotape prepared to promote the Hero series, which was shown to ABC's sponsors and affiliated stations, used excerpts from the music soundtrack of Superman I.
In applying this standard, the Second Circuit found that the Greatest American Hero was not kryptonite. OK, maybe they did not have my sense of humor. The Court did perform a detailed analysis in affirming the judgement to the defendants. I have reproduced some of the highlights below:
Applying these principles to this case, we conclude that Chief Judge Motley correctly entered summary judgment for the defendants on the claim of copyright infringement. Plaintiffs make no claim that the Hero pilot, subsequent episodes, or “promos” infringed the story of any Superman works. Their contention is that the Hero character, Ralph Hinkley, is substantially similar to Superman and that the Hero works impermissibly copied what plaintiffs call the “indicia” of Superman, a concept broad enough to include Superman's costume, his abilities, the well-known lines associated with him-in short, anything occurring in the Hero works that might remind a viewer of Superman.
The total perception of the Hinkley character is not substantially similar to that of Superman. On the contrary, it is profoundly different. Superman looks and acts like a brave, proud hero, who has dedicated his life to combating the forces of evil. Hinkley looks and acts like a timid, reluctant hero, who accepts his missions grudgingly and prefers to get on with his normal life. Superman performs his superhuman feats with skill, verve, and dash, clearly the master of his own destiny. Hinkley is perplexed by the superhuman powers his costume confers and uses them in a bumbling, comical fashion. In the genre of superheros, Hinkley follows Superman as, in the genre of detectives, Inspector Clouseau follows Sherlock Holmes.
Other interesting observations included:
An infringement claim would surely be within the range of reasonable jury fact issues if a character strongly resembled Superman but displayed some trait inconsistent with the traditional Superman image. If a second comer endowed his character with Superman's general appearance, demeanor, and skills, but portrayed him in the service of the underworld, a jury would have to make the factual determination whether the second character was Superman gone astray or a new addition to the superhero genre. In this case, however, a reasonable jury could not conclude that Hinkley is substantially similar to the Superman character with only a change of name. The overall perception of the way Hinkley looks and acts marks him as a different, non-infringing character who simply has some of the superhuman traits popularized by the Superman character and now widely shared within the superhero genre.
The same considerations make evident the correctness of Chief Judge Motley's ruling that the “promos” for the Hero series present no jury issue concerning infringement of the Superman character. By aggregating the total number of viewer impressions made by all the showings of the thirteen basic “promos” and their minor variations, appellants imply, and we agree, that the visual impact of the series of “promos” should be primarily assessed. A viewer of an adequate sampling of the “promos” would necessarily be exposed to the Hinkley characteristics that distinguish him from Superman. In six of the thirteen basic “promos” Hinkley either flies out of control, crash lands, or cringes in cowardly fashion at the firing of bullets. In six other “promos” his flying, though uneventful, is aided (either for vision or balance) by carrying in one hand a large lantern. It may be that within a series of generally non-infringing “promos” a single “promo” could be so substantially similar to a copyrighted character as to establish infringement or at least create a fair factual issue for jury consideration. Here, however, no single “promo” is that similar to the Superman character, and whatever recollections of Superman may be stirred by the “promos” showing Hinkley flying without incident are quickly dispelled by the remainder of the series in which his flying skills are decidedly not super. Nor does infringement arise because one “promo” shows the Statue of Liberty and another shows Hinkley flying in outerspace with the earth in the background. Appellants' claim that these shots infringe scenes from Superman I is too extravagant to be maintained. The Statue of Liberty is a widely recognized symbol of the United States, available for portrayal in any fictional work, and Superman has no monopoly among fictional heroes on self-propelled flight in outerspace.
That leaves for consideration on the infringement claim the use in the Hero episodes and “promos” of lines that either mention Superman and other characters from the Superman saga or incorporate phrases associated with Superman. The use of such lines is manifestly not infringement. In each instance the lines are used, not to create a similarity with the Superman works, but to highlight the differences, often to a humorous effect. Appellants acknowledge the contrasting point made by some of the Hero lines, but insist nevertheless that the point may not be appreciated by some of the viewers, especially young viewers who make up a significant share of the television audience for the Hero series. Appellants were prepared to offer expert testimony to show that some children would not perceive the negatives when the announcer says that Hinkley “may be unable to leap tall buildings in a single bound,”“may be slower than a speeding bullet,” and “may be less powerful than a locomotive.” We do not doubt that some viewers may miss the point, but their misunderstanding does not establish infringement. Perhaps if Hero were a children's series, aired on Saturday mornings among the cartoon programs, we would have greater concern for the risk that lines intended to contrast Hinkley with Superman might be mistakenly understood to suggest that Hero was a Superman program. Cf. Ideal Toy Corp. v. Fab-Lu, Ltd., 261 F.Supp. 238, 241-42 (S.D.N.Y.1966) (children's perception of television commercial for dolls). But when a work is presented to a general audience of evening television viewers, the possible misperception of some young viewers cannot prevent that audience from seeing a program that will readily be recognized by the “average lay observer,” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966), as poking fun at, rather than copying, a copyrighted work.If you have seen this post being carried on another site such as JBlog, please feel free to click here to find other articles on the kosherbeers blogsite. Hey its free and you can push my counter numbers up!
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