DETECTIVE COMICS v. BRUNS PUBLICATIONS

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Docket Number

No. 203.

Attorney(S)

Weil, Gotshal Manges, of New York City (Horace S. Manges and Gabriel Kaslow, both of New York City, of counsel), for complainant-appellee. Koenig, Bachner Koenig, of New York City, for defendant-appellant Bruns Publications, Inc. Samuel A. Fried, of New York City (Asher Blum, of New York City, of counsel), for defendants-appellants Kable News Co. and Interborough News Co.

Judges

Harrie Brigham Chase

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Smart Summary

Factual and Procedural Background

Detective Comics, Inc. initiated an action against Bruns Publications, Inc., and others for copyright infringement relating to the plaintiff's comic strip. The District Court for the Southern District of New York granted an injunction and an accounting in favor of Detective Comics, Inc., finding that Bruns Publications' magazine "Wonderman" infringed on the copyrights of "Action Comics," owned by Detective Comics. The defendants, including Bruns Publications and its distributing agents Kable News Company and Interborough News Co., appealed the decree. The appellate court reviewed the case and modified the injunction while affirming the decree as modified.

Legal Issues Presented

Whether the defendants infringed the copyrights held by Detective Comics, Inc. in its "Action Comics" periodicals.
Whether the depiction of "Wonderman" constituted unlawful copying of the pictorial and literary elements of "Superman."
The scope and appropriateness of the injunction issued by the District Court.

Arguments of the Parties

Defendants' Arguments

The defendants argued that the attributes of "Superman" were derived from prototypes or analogues in literature and mythology, implying that these general ideas were not subject to copyright protection.

Complainant's Arguments

Detective Comics contended that their copyrights covered an original arrangement of incidents and a distinct pictorial and literary form, beyond mere general types or ideas, which Bruns Publications unlawfully copied.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 53	Establishes that copyright protects original production regardless of prior sources, emphasizing copying of the author's work over use of prior art.	The court applied this principle to reject defendants’ argument that prior literary and mythological heroes negated infringement, affirming that the defendants copied the original elements of "Superman."
Nichols v. Universal Pictures Corp., 2 Cir., 45 F.2d 119	Clarifies that copyright does not grant monopoly over general character types, such as a "Superman" figure who is a benevolent hero.	The court relied on this precedent to limit the scope of the injunction, recognizing that the plaintiff cannot monopolize the general idea of a heroic character, but only the specific expression embodied in their work.

Court's Reasoning and Analysis

The court carefully compared the defendant's "Wonderman" magazine with the plaintiff's "Action Comics" and found substantial similarity in both pictorial and literary elements, including character portrayal, costume, and specific feats of strength and heroism. The court rejected the defendants’ defense that the similarities were based on common mythological or literary prototypes, emphasizing that copyright protection extends to original arrangements and expressions, not just ideas or general types. The court noted that the defendants had access to the plaintiff's widely sold periodicals and had appropriated specific details beyond mere general concepts. Consequently, the court affirmed the finding of infringement but modified the injunction to more precisely define prohibited conduct, narrowing it to the copying of particular feats, costume, or appearance rather than a broad prohibition. The court also removed a clause that was deemed redundant as it merely instructed compliance with the law.

Holding and Implications

The decree of the District Court was affirmed as modified.

The court upheld the injunction against Bruns Publications and its distributors for copyright infringement of Detective Comics’ "Action Comics," specifically protecting the original pictorial and literary expressions of "Superman." The injunction was narrowed to prevent only specific copying of the character’s feats and appearance rather than a broad ban. The decision directly enforces the plaintiff’s copyrights and clarifies the limits of protection—distinguishing between protectable original expression and unprotectable general ideas. No costs or counsel fees were awarded on appeal. This ruling reinforces the principle that copyright protects the unique expression of characters and stories, not the underlying archetypes or ideas.

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DETECTIVE COMICS, Inc., v. BRUNS PUBLICATIONS, Inc., et al.

AUGUSTUS N. HAND, Circuit Judge.

The complainant is the owner of eleven copyrights for a like number of monthly issues of a periodical known as "Action Comics". Judge Woolsey found that these copyrights were infringed by a magazine of the defendant Bruns Publications Inc., (hereinafter called Bruns) and known as "Wonderman". He found infringement both by Bruns and by the defendants Kable News Company and Interborough News Co., who were the distributing agents of Bruns. The defendants all had access to complainant's periodicals, which had a wide sale.

We have compared the alleged infringing magazine of Bruns with the issues of "Action Comics" and are satisfied that the finding that Bruns copied the pictures in the complainant's periodical is amply substantiated. Each publication portrays a man of miraculous strength and speed called "Superman" in "Action Comics" and "Wonderman" in the magazine of Bruns. The attributes and antics of "Superman" and "Wonderman" are closely similar. Each at times conceals his strength beneath ordinary clothing but after removing his cloak stands revealed in full panoply in a skintight acrobatic costume. The only real difference between them is that "Superman" wears a blue uniform and "Wonderman" a red one. Each is termed the champion of the oppressed. Each is shown running toward a full moon "off into the night", and each is shown crushing a gun in his powerful hands. "Superman" is pictured as stopping a bullet with his person and "Wonderman" as arresting and throwing back shells. Each is depicted as shot at by three men, yet as wholly impervious to the missiles that strike him. "Superman" is shown as leaping over a twenty story building, and "Wonderman" as leaping from building to building. "Superman" and "Wonderman" are each endowed with sufficient strength to rip open a steel door. Each is described as being the strongest man in the world and each as battling against "evil and injustice."

Defendants attempt to avoid the copyright by the old argument that various attributes of "Superman" find prototypes or analogues among the heroes of literature and mythology. But if the author of "Superman" has portrayed a comic Hercules, yet if his production involves more than the presentation of a general type he may copyright it and say of it: "A poor thing but mine own". Perhaps the periodicals of the complainant are foolish rather than comic, but they embody an original arrangement of incidents and a pictorial and literary form which preclude the contention that Bruns was not copying the antics of "Superman" portrayed in "Action Comics". We think it plain that the defendants have used more than general types and ideas and have appropriated the pictorial and literary details embodied in the complainant's copyrights.

We have repeatedly held that irrespective of the sources from which the author of a work may derive the material which he uses, a picture or writing which is his own production cannot be copied. The prior art is only relevant as bearing on the question whether an alleged infringer has copied the author or has taken his material directly from the prior art. Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 81 F.2d 49, 53.

So far as the pictorial representations and verbal descriptions of "Superman" are not a mere delineation of a benevolent Hercules, but embody an arrangement of incidents and literary expressions original with the author, they are proper subjects of copyright and susceptible of infringement because of the monopoly afforded by the act. Since the complainant is not entitled to a monopoly of the mere character of a "Superman" who is a blessing to mankind (Nichols v. Universal Pictures Corp., 2 Cir., 45 F.2d 119), we think the language of clause 4(c) of the decree somewhat too sweeping. It should be modified so as to read as follows: "(c) From printing, publishing, offering for sale or selling, or in any way distributing any cartoon or cartoons, or any periodical or book portraying any of the feats of strength or powers performed by `Superman' or closely imitating his costume or appearance in any feat whatever."

Clause (d) of Article 4, which merely adjures the defendants to obey the law, should be deleted.

The decree modified as provided in this opinion is affirmed, but without costs or any allowance for counsel fees upon this appeal.