Powers are inherently the scenes a faire in the world of superheroes, and even exact replication of what makes a protected superhero "super" should not rise to the level of infringement.¹ Protection here is equivalent to the protection of an idea, which is forbidden under copyright law.² If one company could lay claim to "flight" or "invulnerability," it would impede commerce.³ These are the abstractions that form the language of superheroes, and ownership of elements of that language would inappropriately choke off its use.⁴ It is common for comparably similar powers to appear in characters from different publishers without giving rise to any claims of infringement.⁵ As standard practices of the genre suggest that actionable infringement does not arise when powers are duplicated, it is appropriate for courts to apply that standard to its infringement analysis.

Where the only similarity between two superheroes consists of a duplication of abstract powers, infringement should not be found. It is fair to introduce a matched set of powers as evidence of intent to infringe, but such evidence should not stand as infringement on its own. There is no need to filter the selection of powers for infringement.

1

See Warner Bros. v. Am. Broad. Cos. 720 F.2d 231, 237, 243 (2d Cir. 1983) (noting that even though "Hinkley's suit invests him with most of Superman's powers," he is "a different, non-infringing character."); see also supra Part I.B.

2

See, e.g., Nat'l Comics Publ'ns, Inc. v. Fawcett Publ'ns, Inc., 191 F.2d 594, 600 (2nd Cir. 1951) (stating that "a copyright never extends to the 'idea' of the 'work,' but only to its 'expression'").

3

See Gaiman v. McFarlane, 360 F.3d 644, 659 (7th Cir. 2004).

4

The publishers of Superman are "not entitled to a monopoly of the mere character of a 'Superman' who is a blessing to mankind." See Detective Comics, Inc. v. Bruns Publ'ns, Inc, 111 F.2d 432, 434 (2d Cir. 1940) (citing Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).

5

In fact, it is somewhat of a tradition for one company to create analogues of another company's characters with the same powers but entirely new names and costumes in order to show a new take on the heroes, or how the companies' heroes might interact.

Compare, e.g., Gardner Fox, Mike Sekowsky & Bernard Sachs, Starro the Conqueror!, The Brave and The Bold 28 (DC Comics Feb.-Mar. 1960) (first appearance of the Justice League of America), reprinted in Gardner Fox, et al., Justice League of America Archives: Volume One (DC Comics 1997)

with Roy Thomas, Sal Buscema & Sam Grainger, When Strikes the Squadron Sinister, The Avengers (Vol. 1) 70 (Marvel Comics Nov. 1969) (introducing the Squadron Sinister, who later became the Squadron Supreme, see Roy Thomas, John Buscema & Frank Giacoia, The World is Not For Burning, The Avengers 85, at 8, 11 (Marvel Comics Feb. 1971);

The Squadron Supreme is Marvel's authoritarian take on DC Comics' Justice League of America

compare, e.g., Warren Ellis, Bryan Hitch, Paul Neary & Laura Depuy, Pay Allegiance to the Authority, The Authority (Vol. 1) 1 (Wildstorm May 1999) (first appearance of anti-hero supergroup The Authority), reprinted in Warren Ellis et al., The Authority Vol. 1: Relentless (Rachelle Brissenden & Eric DeSantis eds., Wildstorm 2000)

with Joe Kelly, et. al., What's So Funny About Truth, Justice & The American Way?, Action Comics 775 (DC Comics Mar. 2001) (First appearance of The Elite);

showing how DC Comics' Superman dealt with analogues of Wildstorm's anti-heroes
(Wildstorm has since became an imprint of DC Comics)

compare, e.g., Stan Lee, Jack Kirby & Dick Ayers, The Coming of the Avengers!, The Avengers (Vol. 1) 1 (Marvel Comics Sept. 1963) (the first appearance of The Avengers), reprinted in Stan Lee et al., Marvel Masterworks: The Avengers (Vol. 1) (Marvel Entertainment Group 2002)

with Mike Friedrich, Dick Dillin & Joe Giella, Batman--King of the World, Justice League of America (Vol. 1) 87 (DC Comics Feb. 1971);

introducing the Justifiers, an analogue of Marvel's Avengers

compare, e.g., Stan Lee, Jack Kirby, George Klein & Christopher Rule, The Fantastic Four!, Fantastic Four (Vol. 1) 1 (Marvel Comics Nov. 1961) (the first appearance of the Fantastic Four), reprinted in Stan Lee et al., Fantastic Four Omnibus Volume One (Marvel Comics, 2005)

with, e.g., Kurt Busiek, Brent Anderson & Steven Buccellato, In Dreams, Kurt Busiek's Astro City (Vol. 1) 1 (Image Comics Aug. 1995), reprinted in Kurt Busiek et al., Life in the Big City, Kurt Busiek's Astro City Vol. 1: Life in the Big City (Homage 1999)

and Bill Finger & Bob Kane, The Case of the Chemical Syndicate, Detective Comics 27, at 2 (DC Comics May 1939) (first appearance of Batman), reprinted in Batman Archives, Volume One 7 (Dale Crain ed., DC Comics 1990)

and, e.g., Kurt Busiek, Brent Anderson, Will Blyburg & Alex Sinclair, New Kid in Town, Kurt Busiek's Astro City (Vol. 2) 4 (Image Comics Dec. 1996), reprinted in Kurt Busiek et al., Kurt Busiek's Astro City Vol. 2: Confession (Homage 1999).

Kurt Busiek's creator-owned First Family is his reinterpretation of Marvel's Fantastic Four, and Confessor is his take on DCs Batman.