IP Law Daily, COPYRIGHT—S.D.N.Y.: ‘Iron Man’ armor not copied from ‘Radix’ comic, but poster could infringe, (Mar 28, 2017)

By Thomas Long, J.D.

No reasonable juror could find that the copyright holders, creators, and distributors of the "Iron Man" and "Avengers" movies copied the design of Iron Man’s body armor from armor depicted being worn by various characters in a comic book series called "Radix," the federal district court in New York City has decided. Average observers would clearly see the differences between the works and would not conclude that one was copied from the other. Iron Man’s armor in the films was, as a matter of law, not substantially similar to the designs created by the company that produced the "Radix" comics, and that company’s copyright infringement claims were dismissed. The comic book company could, however, go forward with claims that a promotional poster for the movie "Iron Man 3" infringed promotional art for the "Radix" comic because a jury could find those works to be substantially similar (Horizon Comics Productions, Inc. v. Marvel Entertainment, LLC, March 27, 2017, Oetken, J.).

The owners of Horizon, brothers named Ben and Ray Lai, created a comic book in 2001 called "Radix." The characters in that title wore "highly-detailed, futuristic, armored, and weaponized suits of body armor to fight enemies." The Iron Man character—which first appeared in comic books in 1963—originally wore armor that resembled a "spandex-like attire and minimal armor," whereas the recent motion picture adaptations by Marvel used a fully mechanized suit of body armor for the character. Horizon contended that this change took place after the Lai brothers submitted the "Radix" art to Marvel and were hired by Marvel as artists.

Horizon asserted that the mechanized body armor worn by the character Iron Man in the "Iron Man" and "Avengers" movie franchises was "appropriated" from Horizon without authorization or attribution. Horizon filed suit against Marvel Entertainment, LLC; MVL Film Finance, LLC; Marvel Worldwide, Inc.; Marvel Studios, LLC; DMG Entertainment, LLC; Paramount Pictures Corp.; and Walt Disney Studios Motion Pictures, Inc. (collectively, "Marvel"), alleging copyright infringement. Horizon alleged that substantial similarities existed between a promotional poster for "Iron Man 3" and a promotional piece of art for the "Radix" comic, as well as various artistic depictions of the body armor used in the Iron Man films and the "Radix" comics. Marvel moved to dismiss the complaint on the grounds that the elements of Horizon’s works alleged to have been copied were not protectable and were not substantially similar to the accused Marvel works.

Promotional art. Both pieces of promotional art showed a character wearing body armor and crouched in a "fighting pose." The court agreed with Marvel that the concept of "highly-detailed, futuristic, armored, and weaponized suits of body armor" was too general to qualify for copyright protection, as was the pose shown in the artworks. These elements were scenes a faire, in the court’s view. However, looking to the particularized expressions of the ideas, there were some similarities, such as the hairstyle of each character, the presence of blue lights in both suits, similar notches in the shoulder covers, and the color of the suits. These elements were copyrightable, the court said. Although there were differences between the words, the court decided that it could not conclude, at this stage, that no reasonable jury could find that the works were substantially similar, based on their "total concept and overall feel." The infringement claim focused on the promotional artworks was, therefore, not dismissed.

Mechanized body armor. Horizon failed to state a claim with respect to the various artistic renditions of the mechanized body armor, however. The use of such armor was a standard scene a faire for the superhero genre. Moreover, the works were so different that no reasonable jury could find a substantial similarity between them, the court said. For example, the boots were different colors, the heels and toe boxes of the boots differed, and the shin guards were shaped and colored differently. Accordingly, the motion to dismiss was granted in part.

The case is No. 1:16-cv-02499-JPO.

Attorneys: Jeffrey Philip Wiesner (Shapiro, Weissberg and Garin, LLP) for Horizon Comics Productions, Inc. Sanford M. Litvack (Hogan Lovells US LLP) for Marvel Entertainment, LLC; MVL Film Finance, LLC; Marvel Worldwide, Inc.; Marvel Studios, LLC; DMG Entertainment, LLC; Paramount Pictures Corp.; and Walt Disney Studios Motion Pictures, Inc.

Companies: Horizon Comics Productions, Inc.; Marvel Entertainment, LLC; MVL Film Finance, LLC; Marvel Worldwide, Inc.; Marvel Studios, LLC; DMG Entertainment, LLC; Paramount Pictures Corp.; Walt Disney Studios Motion Pictures, Inc.

Cases: Copyright NewYorkNews