Court Allows Copyright Lawsuit Over Iron Man Poster to Continue
March 29, 2017
by Jerry Glover
Horizon Comic recently filed suit against Marvel Entertainment alleging that a poster for the motion Picture “Iron Man” from Marvel infringed on the copyright in and to Horizon’s comic book character, Radix. The Horizon claim was primarily based on the similarity of the weaponized armor suits both superheroes wear. See both characters below. Horizon Comics Productions, Inc. v. Marvel Entertainment, LLC, No. 16 CV 2499 (S.D.N.Y. March 27, 2017).
Horizon’s owners had submitted the Radix art to Marvel when applying for a job. They were hired by Marvel as artists. Marvel did not deny that it had access to Horizon’s drawings of Radix. Marvel claimed, however, that the elements that made up Radix’s costume were not protectable expression under the federal Copyright Act and, even if Horizon’s hero costume was protectable expression, a comparison of the two costumes showed that they were not substantially similar. Therefore, Marvel moved to dismiss Horizon’s complaint.
The district court first reviewed some basis copyright principles:
–to establish copyright infringement (i) Horizon must have a valid copyright (no argument from Marvel on that point); (ii) Marvel’s poster must be substantially similar to the protectable elements of Horizon’s poster;
–what is “substantial” is a difficult question but generally boils down to whether “an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” Yurman Design Inc. v. PAJ Inc., 262 F.3d 101, 111 (2d Cir. 2001). This analysis, the court added, is “more discerning” when the plaintiff’s work contains both protectable and unprotectable elements. In that case the court has to extract the protectable elements and determine whether those elements, standing alone, are substantially similar to those same elements in defendant’s work;
–the inquiry often boils down to whether the total concept and feel of the works produced by the plaintiff and defendant, as instructed by the courts “good eyes and common sense” are the same.
The court then turned to the artwork which plaintiff had presented as part of its complaint. The court first noted that plaintiff’s Radix contained both protectable and unprotectable elements a more discerning eye had to be used. Marvel argued that the idea of a highly mechanized suit of armor that both characters wear and the “fighting pose” of both characters in the poster were not protectable. The court agreed.
But Horizon did not claim that it had any rights to mechanized suits of armor in general. It pointed to the following as protectable elements of the Radix character which Horizon claimed Marvel had copied: the hairstyle of each character, the presence of blue lights in each suit, similar notches in the shoulder covers and the color of the suits.
The court agreed the hairstyles were quite similar but there were also some differences. The court agreed that both suits had blue lights in the center of the chest but also noted that Iron Man’s suit had a round light emitted from one location which the Radix suit has four diamond-shaped blue lights around the chest and on the left knee. The shoulder notches differed but had some similarities but the suit colors were different (although the court noted that the lighting and sharing of the images and the use of a similar shade of re3de did show some similarity to the observer).
By comparing the overall concept and feel of these elements the court found there was sufficient similarity to survive the defendant’s attempt to dismiss the case before trial in connection with the art work.
The court then looked at the mechanized body armor on both characters. Horizon argued that the boots were similar but the court noted they were different colors, the heels appeared to differ and the toe boxes were differently sized and shaped. The court also pointed to the differences in the shin covers. The court concluded that these dissimilarities would lead to the conclusion that Marvel did not copy from Horizon.
So the case will go to trial over whether the artwork is substantially similar.