A court recently refused to dismiss copyright infringement claims against Marvel brought by Horizon Comics Productions. The suit alleged that Marvel copied the mechanized body armor work worn by Iron Man and a related promotional piece appearing in Iron Man 3 from its 2001 comic book series Radix and related promotional materials. Marvel moved to dismiss the complaint on grounds that the elements of the works alleged to have been copied are not protectable under the Copyright Act. Marvel further argues that to the extent that any elements were copyrightable, those elements were not substantially similar to Marvel’s works.

The U.S. District Court for the Southern District of New York agreed with Marvel that a mechanized suit of armor and a fighting pose are scenes a faire, and therefore unprotectable from copyright perspective in the comic book or superhero genre. With respect to the claim that the mechanized body armor of Iron Man infringed that of Radix, the Court held that the protectable elements of the suits have clear dissimilarities and that no reasonable jury could find the suits in the two works to be substantially similar, thereby partially dismissing plaintiffs’ claims. However, plaintiffs also alleged that Marvel’s movie poster also copied promotional pieces for the Radix comic (see side-by-side below). The Court found that although the mechanized suit of armor and the fighting pose portion alone could not give rise to a finding of substantial similarity, the works, when looked at in whole, “share a similarity of expression” or a similarity in their “total concept or feel” sufficient to survive a motion to dismiss.

TIP: It is common to find creative inspiration in third party works. However, advertisers should be careful that their final product is substantially dissimilar in total look and feel.