Second Circuit ruling
The court began its analysis by noting "[T]he similarity to be assessed must concern the expression of ideas, not the ideas themselves."[7] The court reviewed the similarities and dissimilarities of Superman and The Greatest American Hero. It found the two "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 superheroes, Hinkley follows Superman as, in the genre of detectives, Inspector Clouseau follows Sherlock Holmes. . . . 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.[8]"
The plaintiffs sought to (but were not allowed to) offer expert testimony that children would be confused because they would not notice the negative language in such phrases as 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." The court dismissed such evidence as immaterial:
"We do not doubt that some viewers may miss the point, but their misunderstanding does not establish infringement. Perhaps if [The Greatest American] 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. 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' as poking fun at, rather than copying, a copyrighted work.[9]"
As for the unfair competition claims, so far as they relied on confusion, the court said, there was no misrepresentation and no likelihood of confusion as to source.[10] As to "state law claims that rely on the misappropriation branch of unfair competition [they] are preempted."[11] As to the "dilution" claim, "no reasonable jury could find that the . . . series or promos blurred or tarnished those marks."[12]
The Second Circuit affirmed the district court's ruling on all points.
