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For the purposes of copyright infringement, the similarity to be assessed must concern the expression of ideas, not the ideas themselves, a distinction easier to assert than to apply. Though the issue of substantial similarity is frequently a fact issue for jury resolution, the United States Court of Appeals for the Second Circuit has recognized that a court may determine non-infringement as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only non-copyrightable elements of the plaintiff's work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.
Both parties appealed from a judgment in an action for copyright infringement, unfair competition, and trademark dilution. Warner Bros., Inc. et al. challenged the summary judgment in favor of American Broadcasting Companies, Inc. (ABC) and third-party defendant Stephen J. Cannell Productions, claiming the district court erred in holding that the fictional character Ralph Hinkley, the principal figure in ABC’s TV series was not substantially similar to Warner’s fictional character, Superman. ABC challenged the denial of attorney fees and costs. Warner argued that the hero of ABC’s TV series was an impermissible copy of their fictional hero, but the district court held that a visual comparison of the two works established lack of substantial similarity.
Is the fictional character Ralph Hinkley, the principal figure in a television series, "The Greatest American Hero," 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?
The court affirmed the ruling because comparison of the works revealed no fair jury issue concerning likelihood of confusion or tarnishing of Warner’s mark. The court also held that denial of attorney fees and costs to ABC was not an abuse of discretion.