IP Law Daily ‘Iron Man 3’ poster did not infringe promotional art for ‘Radix’ comics
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Tuesday, July 16, 2019

‘Iron Man 3’ poster did not infringe promotional art for ‘Radix’ comics

By Thomas Long, J.D.

Creators of the movie poster lacked access to the plaintiff’s artwork, the works were not "strikingly similar," and there was unrebutted evidence that the poster was independently created.

A poster for the movie "Iron Man 3" did not infringe promotional art for a comic book series called "Radix," the federal district court in New York City has determined. Marvel Entertainment, LLC, and other companies involved in the creation and production of the "Iron Man" movies established that they did not have access to the artwork created by the company that produced the "Radix" comics, and the works at issue were not "strikingly similar." In addition, Marvel produced unrebutted evidence that its "Iron Man 3" poster was independently created (Horizon Comics Productions Inc. v. Marvel Entertainment, LLC, June 15, 2019, Oetken, J.).

The creator of "Radix" comics, Horizon Comics Productions, Inc. ("Horizon"), filed suit against Marvel Entertainment, LLC; MVL Film Finance, LLC; Marvel Worldwide, Inc.; Marvel Studios, LLC; DMG Entertainment, LLC; and Walt Disney Studios Motion Pictures, Inc. (collectively, "Marvel"), asserting copyright infringement. The owners of Horizon, brothers named Ben and Ray Lai, created "Radix" in 2001. The characters in that title wore "highly-detailed, futuristic, armored, and weaponized suits of body armor to fight enemies." In March 2017, the court determined that no reasonable juror could find that Marvel copied the design of Iron Man’s body armor from armor depicted in "Radix," but that a jury could find that the "Iron Man 3" poster was substantially similar to promotional art for the "Radix" comic. After the close of discovery, Marvel moved for summary judgment on the claim over the poster.

Works at issue. The "Iron Man 3" poster—which was displayed online and in U.S. and Canadian movie theaters—features Iron Man—a fictional superhero played by the actor Robert Downey Jr.—kneeling and crouching in his red and gold armor. The "Radix" art featured a character from the comic book called Caliban, in a kneeling pose and wearing mechanized armor. Three editions of "Radix" were published between 2001 and 2002, but none of them contained the Caliban drawing.

Access. Horizon did not offer any evidence of direct copying and therefore was required to establish that Marvel had access to Horizon’s work and that the parties’ respective works were substantially similar, or, in the absence of a showing of access, that the works were "strikingly" similar. "Access" means that the alleged infringer had a "reasonable possibility," not just a "bare possibility," of seeing the plaintiff’s work. Horizon argued that Marvel had access because several Marvel employees—none of whom were creators of the "Iron Man 3" poster—were aware of "Radix" and the promotional art, after meeting the Lai brothers at the 1999 San Diego Comicon, where the brothers displayed the "Radix" poster. A Marvel editor also allegedly visited the Horizon website, where a copy of the Caliban drawing was on display. In addition, Marvel editors hired the Lai brothers as artists working on the "Thor" comic book series in 2002, as well as the colorist for "Radix." Marvel contended that there was no evidence that any of its employees ever saw the Caliban drawing or that they shared that drawing with the creators of the "Iron Man 3" poster. Horizon asserted that the Marvel employees provided a link between the Caliban drawing and the artists who created the Marvel poster.

In the court’s view, regardless of whether any Marvel employees actually saw or saved a copy of the Caliban drawing, they could not be a nexus between the parties’ works because no evidence supported the finding of a reasonable possibility that they shared a copy of the Caliban drawing with the "Iron Man 3" poster artists. Each of the witnesses who were involved in creating the Marvel poster denied ever seeing the Caliban drawing. Horizon failed to present any evidence to the contrary. Horizon’s arguments that various other individuals at Marvel—who had differing degrees of working relationships with the Lai brothers—had access to the Caliban drawing were founded on nothing more than speculation, the court said. The court concluded that Horizon failed to introduce the required "significant, affirmative, and probative" evidence to show access.

Striking similarity. Horizon attempted to overcome its failure of proving access by arguing that the two works were "strikingly similar." To meet this high standard, Horizon was required to show that the works were "so identical as to preclude any reasonable possibility of independent creation," the court explained. Horizon relied on an expert report that described several alleged similarities with respect to the figures’ anatomical structures, faces and heads, and camera views. However, this argument suffered from two fatal defects, the court said. First, the expert report did not offer an "unequivocal opinion" about the striking similarity of the works. The report stated that the similarities in the anatomical structures of the two figures rendered it "highly unlikely ... approaching impossible" for the "Iron Man 3" poster to be independently created, but the report’s discussion of the specifics of the drawings was more equivocating. For example, the report pointed out "noteworthy similarities" between the faces and heads of the two figures, but it did not identity any "striking similarities." In addition, the report admitted that the similarities with respect to the images’ camera views were not apparent without "careful viewing of the two images." Most importantly, in the court’s view, the report never opined that the similarities between the works precluded any reasonable possibility of independent creation. Second, even taking the similarities noted by the report into account, there were enough differences between the works to foreclose a finding of striking similarity, the court said. There were differences in pose, placement of blue lights, and coloring. The "Iron Man 3" poster depicted a battle scene with Iron Man crouching on a piece of debris floating in the ocean, whereas the Caliban drawing showed an armored figure in a void, with no background at all. The court concluded that no reasonable juror could find the works strikingly similar.

Independent creation. Even if Horizon could have established a prima facie case of copyright infringement, the court said that Marvel still would be entitled to summary judgment because it provided unrebutted evidence that it independently created the "Iron Man 3" poster. Marvel established that work on the poster began in 2012 when Walt Disney Studios engaged an artist at a third-party company to create posters for the movie. The creative team for the poster developed inspiration boards and sketches with images sourced from prior "Iron Man" movies and comics. Marvel also arranged a photo shoot featuring Robert Downey, Jr., to produce photographs for poster design. Photos from this shoot featured Downey kneeling and crouching, and these photos were used to create the poster. Horizon provided no evidence to counter Marvel’s evidence. Accordingly, the court granted Marvel’s motion for summary judgment.

This case is No. 1:16-cv-02499-JPO.

Attorneys: Edward Charles Greenberg (Edward C. Greenberg PC) and Paul Sennott (Sennott & Williams, LLP) for Horizon Comics Productions Inc. Sanford M. Litvack (Chaffetz Lindsey LLP) and Benjamin Andrew Fleming (Hogan Lovells US LLP) for Marvel Entertainment, LLC.

Companies: Horizon Comics Productions Inc.; Marvel Entertainment, LLC

MainStory: TopStory Copyright NewYorkNews

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