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After taking fire for more than four years, Marvel Entertainment has finally prevailed in a copyright lawsuit targeting the Iron Man 3 poster. On Monday, a New York federal judge delivered a summary judgment victory for the Disney subsidiary.
The case was originally filed in Massachusetts by Horizon Comics Productions, run by Ben and Ray Lai, brothers who created a character named Caliban for their comic book series called Radix. The two also alleged that they had had been hired by Marvel back in 2002 as artists working on various comic book franchises, including Thor.
The suit then moved to New York for jurisdictional reasons, and in March 2017, Horizon was able to get past a motion to dismiss upon the judge’s conclusion that the works at least shared a similarity in their “total concept or feel.”
So discovery opened as both parties explored the creation and similarity of these two works …
Now comes the big decision.
U.S. District Court Judge J. Paul Oetken notes Horizon’s evidence that Radix gathered substantial interest in the comic book industry when it came out and that at least a half dozen current Marvel employees were aware of the comic book.
The Lai brothers may have enjoyed some sort of relationship with Marvel employees, but on the issue of access, the judge writes, “there is virtually no evidence in the record that shows any one of these individuals either would have seen the Caliban Drawing or would have been involved in the Iron Man 3 Poster design, let alone both. Horizon’s arguments that these individuals could provide an access nexus is founded on nothing more than speculation.”
Oetken adds that just because Radix might have been popular doesn’t mean the Caliban Drawing was widely disseminated.
Horizon still could have gotten the case to trial, but it then needed to show an inference of copying through the similarity of the works. Specifically, Horizon argued the two works were “strikingly similar,” with reliance on an expert report discussing anatomical structures, faces and heads, and camera views.
The judge responds that the expert report is “equivocating” on some of the noteworthy similarities by addressing features on careful viewing and not going quite so far to rule out any reasonable possibility of independent creation. Plus, the judge adds, “there remain enough differences between the two works,” nodding to Marvel’s pointing out differences in pose, differing placement of blue lights, and significantly different overall coloring.
Finally, the judge writes, “In contrast to Horizon’s virtually non-existent evidence of copying, Marvel has introduced unrebutted evidence showing its independent creation of the Iron Man 3 Poster.”
The opinion (read here) details Marvel’s origin story behind the poster.
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