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District court grants in part and denies in part Marvel’s motion to dismiss copyright infringement claims alleging similarities between Marvel’s Iron Man character and plaintiff’s Radix comic book, finding that no protectable similarity existed between artistic depictions of mechanized body armor used in Iron Man films and mechanized armor used in Radix, but that similarities sufficient to survive motion to dismiss existed between promotional poster for Iron Man 3 and promotional piece of art for Radix.

Horizon Comics Productions, Inc. sued Marvel Entertainment, LLC, and several other defendants for copyright infringement related to depictions of the superhero character Iron Man. The owners of Horizon, comic book artists and brothers Ben and Ray Lai, created a comic book series called Radix that featured characters wearing “highly-detailed, futuristic, armored, and weaponized suits of body armor to fight enemies.” Horizon claimed that, in Marvel’s Iron Man and Avenger movie franchises, the character Iron Man wears “mechanized body armor” that “appropriates [plaintiff’s] copyrighted artistic works ….” According to Horizon, although the Iron Man character first appeared in 1963, older versions of the character wore “spandex-like attire and minimal armor,” but after the Lai brothers sent their artwork to Marvel, this allegedly changed to the “fully mechanized suit of body armor” depicted in the Iron Man and Avenger movies. Horizon alleged that Marvel infringed its copyright by copying elements of Horizon’s illustrations for use in the film. In particular, Horizon argued that substantial similarities existed between (1) a promotional poster for the film Iron Man 3 and a promotional piece of art for the Radix comic, and (2) the artistic depictions of the mechanized body armor used in the Iron Man films and the mechanized armor used in the Radix comics. Marvel moved to dismiss the complaint on the grounds that the elements of Horizon’s works alleged to have been copied are not protectable as a matter of law and, in any event, are not substantially similar to the defendants’ works.

The district court began its analysis by discussing the elements of a copyright infringement claim. In order to establish a claim for copyright infringement, a plaintiff with a valid copyright must demonstrate that (1) the defendant actually copied the plaintiff’s work, and (2) the copying is illegal, because a “substantial similarity” exists between the defendant’s work and the protectable elements of plaintiff’s. Where a work contains both protectable and unprotectable elements, a court must engage in a “more discerning” analysis, in which it must attempt to extract the unprotectable elements from consideration, and ask whether the protectable elements, standing alone, are substantially similar. However, even when engaging in this “more discerning” inquiry, a court should not “dissect” works into separate components and “compare only those elements which are in themselves copyrightable.” Instead, a court must engage in a more “holistic” inquiry, comparing the contested works’ “total concept and overall feel,” allowing for a finding of infringement where a defendant has “parrot[ed] properties that are apparent only when numerous aesthetic decisions embodied in the plaintiff’s work of art … are considered in relation to one another.”

Applying this standard, the district court first addressed the claimed similarities between the Iron Man 3 poster and the Radix promotional artwork, displaying the images next to each other in the opinion. Because the Radix artwork contained “both protectable and unprotectable elements,” the district court applied the “more discerning” substantial similarity analysis, attempting to extract the unprotectable elements from consideration. In so doing, the district court found that the “idea of a highly mechanized suit of armor” and the “fighting pose” depicted in both works were unprotectable elements, in that they were scènes à faire common to the comic book or superhero genre. Turning to the particularized expression of the idea, however, the district court found that there were some similarities between the suits, as depicted in the promotional artwork. The district court noted that the hairstyles of the characters were similar, that both suits made use of the elements of blue lights, that both suits had similar notches in their shoulder covers, and that, while the color of the suits differed, given the lighting and shading in the images and the shared use of a similar shade of red, there was some similarity. Ultimately, looking at the works’ “total concept and overall feel,” the district court held that “[t]his 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 …’” (citation omitted). Accordingly, the district court denied Marvel’s motion to dismiss the copyright infringement claims as between the promotional poster for Iron Man 3 and the promotional art for Radix.

The district court granted Marvel’s motion to dismiss with respect to the allegation that the artistic depictions of the mechanized body armor used in the Iron Man films copied from the Radix comics; however, the court repeated that the use of a mechanized suit of armor is a standard scène à faire in the superhero genre, and concluded that no reasonable jury could find a “substantial similarity” between the protectable elements of the suits as a matter of law. The court addressed Horizon’s claims of similarities between particular features of the characters’ armor, such as boots and shin covers, stating that Horizon could not bolster its infringement claim by manipulating the images (such as by cropping them or rotating them). Even setting aside such manipulations, the district court observed that various differences existed between the depictions of these features, such that no reasonable juror could find that a substantial similarity existed. It concluded that “[a]n average observer would clearly see the dissimilarities between the works and would not conclude that one was copied from the other” and granted Marvel’s motion to dismiss as to the depictions of armored suits.