9:15am PT by Eriq Gardner
Judge Allows Copyright Lawsuit Against Marvel Over 'Iron Man 3' Poster
On Monday, Marvel Entertainment pierced a lawsuit brought by Horizon Comics Productions, successfully getting a judge to reject copyright claims over Iron Man's body armor. However, the entertainment giant will still need to defend the way that Iron Man star Robert Downey Jr. was presented in the poster of Iron Man 3.
Ben and Ray Lai, brothers who run Horizon, brought the lawsuit in April 2015, alleging that they created the comic book series Radix in 2001 before being hired by Marvel to work on various comic book franchises. The lawsuit contending that Marvel ripped off Radix took a bit of time getting to its present stage. Originally, the complaint came in Massachusetts before a federal judge there decided there wasn't sufficient jurisdiction to proceed.
Now that the complaint has been refiled in New York, Marvel moved for dismissal with the argument that the alleged similarities between the work are not protectable expression and that no reasonable juror could find substantial similarity.
In an opinion, district court judge J. Paul Oetken examines promotional art for both works:
Oetken agrees with Marvel that the idea of a "highly mechanized suit of armor" and the "fighting pose" are unprotectable elements, scenes a faire in the comic book or superhero genre.
When it comes to the particularized expression of the idea, the judge notes some non-identical similarity — the hairstyles, the use of blue light, the color of the suits, etc. — with the ultimate conclusion that the works do share a similarity in their "total concept or feel" to survive a motion to dismiss."
According to the opinion (read here), "This is not a case where only non-copyrightable elements exist in the work, nor is it one where the Court can conclude, at this stage, that 'no reasonable jury, properly instructed, could find that the two works are substantially similar' based on their 'total concept and overall feel.'”
Marvel does, though, defeat the allegation focusing on the artistic depictions of mechanized body armor.
Take the boots for example.
Oetken writes, "The boots have completely different colors (Radix: blue and gray; Iron Man: red and gold); the heels appear to differ (Radix: heel with spur; Iron Man: gold square near ankle); the top-foot is of a totally separate nature (Radix: angular and receding into the shin cover; Iron Man: gold and protruding from the toe box); and the toe boxes are differently sized and shaped (Radix: rounded and covers only the toes; Iron Man: boxier and covers more of the foot)."
The judge writes that an average observer "would clearly see the dissimilarities between the works and would not conclude that one was copied from the other."