## Facts

- Warner Bros., Film Export A.G., and DC Comics owned copyrights and related rights in the Superman character and works embodying Superman across comics, television, and film.
- American Broadcasting Companies, Inc. broadcast a television series titled *The Greatest American Hero*, produced by Stephen J. Cannell Productions.
- ABC released press materials and promotional spots for the series beginning in January 1981.
- Two days before the scheduled premiere, plaintiffs sued and sought emergency injunctive relief, alleging:
  - copyright infringement under 17 U.S.C. § 501(b) based on claimed copying of protectable elements of the Superman character and works; and
  - false designation of origin and related unfair competition under Lanham Act § 43(a), 15 U.S.C. § 1125(a), and state law, based on alleged likelihood of consumer confusion about sponsorship or authorization.
- The district court reviewed the promotional spots and the premiere episode, compared them to plaintiffs’ Superman works (including the feature film), and heard testimony about the series’ creation and production.

## Issues

1. Whether plaintiffs established entitlement to a preliminary injunction by showing likely success (or sufficiently serious questions plus a hardship balance) on their claim that *The Greatest American Hero* was substantially similar in protectable expression to Superman.
2. Whether plaintiffs showed a likelihood of success that the series and promotions were likely to cause consumer confusion about source, sponsorship, or authorization under Lanham Act § 43(a) and state unfair competition law.
3. Whether, and to what extent, parody/fair use could justify borrowing in this context at the preliminary injunction stage.

## Decision

- The Second Circuit affirmed the denial of a temporary restraining order and preliminary injunction.
- Plaintiffs failed to satisfy the circuit’s preliminary-injunction standard because they did not show a likelihood of success, nor sufficiently serious merits questions with hardships tipping decidedly in their favor.
- On copyright, the court agreed that plaintiffs had not shown substantial similarity in protectable expression between Superman and the challenged character/work.
- On Lanham Act and unfair competition, the court agreed plaintiffs had not shown a sufficient likelihood of public confusion as to origin or sponsorship.
- The case was remanded for further proceedings.

## Legal Principles

- A preliminary injunction requires either (1) likelihood of success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the movant.
- Copyright protects expression, not the generalized idea of a superhero; substantial-similarity analysis focuses on protectable expressive elements and the work’s overall concept and feel, not stock genre features.
- Shared traits that are standard to a genre (e.g., capes, flight, strength, double lives, battling villains) are generally unprotectable elements and do not, without more, establish actionable similarity.
- Parody/fair use may justify limited, targeted borrowing in isolated instances, but does not automatically shield an entire competing work that is substantially similar; where protectable substantial similarity is not shown, courts need not rely on fair use to deny preliminary relief.
- Lanham Act § 43(a) relief requires a showing of likely consumer confusion as to source, sponsorship, or authorization; the absence of a persuasive confusion showing defeats preliminary injunctive relief.

## Conclusion

The Second Circuit upheld denial of preliminary injunctive relief because plaintiffs did not make the required showing that the challenged series appropriated protectable Superman expression or that it was likely to confuse consumers about sponsorship, emphasizing that copyright does not confer exclusive rights over generic superhero conventions.


Warner Bros., Inc. v. American Broad. Cos., 654 F.2d 204 (2d Cir. 1981)