The Horizon Comics Productions v. Marvel Entertainment
suit (Southern District of New York, 16-cv-2499) is still pending.
What is the case about?
Ben and Ray Lai are two brothers who own
Horizon Comics Productions and created the comic book series Radix in 2001. Only a few books were
published in 2001 and 2002.
Radix featured characters wearing “highly-detailed,
futuristic, armored, and weaponized suits of body armor to fight enemies”
(original complaint).
Marvel created the Avengers series, of
which Iron Man
is one of the superheroes. The character gets his superpowers from a powered
armored suit.
Uh-oh, two power suits (not the eighties
type with the big shoulder pads, the armored and weaponized type).
 |
| Honk if you remember these |
Marvel’s Iron Man character first appeared
in 1963, but he did not have armor then. Plaintiffs alleged that he first wore
a “spandex-like attire and minimal armor”
and then wore a “fully mechanized suit of
body armor” in the Marvel movies, and that this change occurred after
Plaintiffs had submitted the Radix art to Defendants and were hired by Marvel
as freelance artists.
Robert Downey Junior (RDJ) played Iron Man
in several of Marvel’s movies. Iron Man 3
is at stake in this case, or rather,
the promotional poster of the movie, which shows RDJ crouching in costume, the
left knee on the floor, the right leg bended, the left hand on the floor, the
right hand closed in a fist.
Plaintiffs claimed that the armored suit
worn by Iron Man in the Iron Man and Avengers film was based on a suit worn by
the hero of Radix and that the
promotional poster copied a particular promotional piece for Radix (the Caliban Drawing).
Marvel had moved to dismiss claiming that
elements of Plaintiff’s works which had allegedly been copied were not
protectable as a matter of law and were not, in any event, substantially
similar to Defendants’ works. In March 2017, Judge Paul Oetken granted
the motion as to the armored suit’s claim, but allowed the complaint about the
promotional posters to move forward.
Defendant recently filed a memorandum of
law in support of its motion for summary judgment.
Parties in a copyright infringement suit
sometimes struggle to prove how a particular work has been created. However, it
is essential to be able to prove that the allegedly infringing work has been
independently created. This is why Marvel’s memorandum of law is particularly
interesting to read.
Opportunity
to copy
A plaintiff claiming copyright infringement
must show that the defendant copied his work. If there is no direct evidence of
actual copying, he must show access and probative similarity.
Marvel claims that that it hadn’t access to
the Caliban Drawing. Plaintiffs claim that Ray Lai had provided his business
card to several persons which listed a web site address where the Caliban Drawing
could be found, and that the drawing was hung on a wall at a comic book
convention in 2001.
Marvel denied it had access, as there was
no evidence that anyone involved in the creation of the Iron Man 3 poster was at
the comic book convention where the drawing was allegedly featured. They
further argued that the mere fact that the drawing was allegedly featured on Plaintiff’s website is not
sufficient evidence, as “the existence of
the plaintiff’s copyrighted materials on the Internet, even on a public and
‘user-friendly’ site, cannot by itself justify an inference that defendant
accessed those materials.” Defendant noted that Plaintiff’s website had
ceased to operate in 2003, which made it improbable that anyone involved in the
making of the poster, even if they had indeed visited the site, would have
saved a copy of the Caliban Drawing found on the site and then used it years later
to create the Iron Man 3 promotional
poster.
If Plaintiff is not able to prove access,
then probative similarities are not sufficient to prove copying. Instead,
plaintiff must prove that the two works are “strikingly similar,” which means
that “two works are so nearly alike that
the only reasonable explanation for such a great degree of similarity is that
the latter was copied from the first.”
Creative
process
It is Marvel’s description of the
independent creation of the Iron Man 3 Poster which is particularly interesting
to read.
Even if a plaintiff provides evidence supporting
a prima facie case of infringement,
defendant can still prevail if can prove that he independently created the
work.
Disney and Marvel had retained the service
of a third party to create the poster. He testified he had never see the Caliban
Drawing, but described his creative process.
He reviewed the Iron Man 3 script then
developed inspiration boards using images from prior Iron Man movies and
comics. He and his team then made black and white sketches, which were used as an
inspiration for RDJ during a photo shoot.
Hundreds of photos were taken during the
shoot. One of them shows the actor in the pose which was later chosen for the
Iron Man 3 promotional poster. RDJ is shown looking down at the black and white
sketches while posing.
Defendant was thus able to establish a
chain of inspiration: inspiration board drawings of former Iron Man movies and
comics, which inspire sketches, which in turn inspire the RDJ pose, which is
then replicated in the poster. Defendants
claim this a “straightforward development
process.”
Defendants further explained that before
the poster was finalized, the creative team had provided Marvel with “callout”
documents “identifying, by source and
serial number, every photographic and artistic element depicted in the Iron Man
3 poster, so that Marvel Studios’ legal team could “clear” any license rights
needed for those materials.” Defendants argued that “the photos used for
Iron Man’s head, shoulders, arms and fist” were all taken during the RDJ shoot.
Defendant concludes by stating that “[t]he
claim that they would copy a drawing made some 10 years earlier by unknown
artists, to promote an unheard-of comic book, depicting an anonymous character
wearing a generic armored suit in a stock fighting pose is, candidly,
ludicrous.” [Ouch].
Image of the "power suit" is courtesy of Flickr User (and Thrift Store Extraordinaire) Housing Works Thrift Shops, under a CC BY-SA 2.0 license. C BY-SA 2.0
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