Court tosses lawsuit over suit but keeps alive tiff over movie poster

When a super hero upgraded from spandex and metal to hard-core gear, that spawned a lawsuit over a suit. But almost two years after Horizon Comics Productions, Inc. (“Horizon”) sued Marvel Entertainment, LLC (“Marvel”) for copyright infringement, a federal judge has unzipped the claim that one of the planet’s leading character-based entertainment companies stole the body armor design for Iron Man from two comic book artists.

U.S. District Court Judge J. Paul Oetken scrapped most of the suit by Horizon and onetime Marvel artists Ben and Ray Lai, finding iron-clad dissimilarities between Ironman’s ever-evolving garb in a $318 million-dollar movie and the attire of  the protagonists in a 2001 comic book series “Radix.”

But the judge also left a glimmer of possibility for the Lais and Horizon, allowing their claims to go forward that the Iron Man movie poster may have infringed on their intellectual property. How did this suit clang its way into court for so long?

How brothers saw Ironman costume designs infringing their own

The Lai brothers were hired by Marvel in 2002 after sending the company a copy of their 2001 comic book “Radix,” which describes a once utopian and now post-apocalyptic world in which key characters go on a series of adventures to save their futuristic society. The protagonist wears protective gear that, the brothers say in their suit, was part of their copyrighted work.

Soon after they began their Marvel stint, they noted, Iron Man got hardened: He no longer dashed about just in spandex and “minimal armor.” He went full metal jacket, instead, donning a head-to-toe, mechanized suit, which Marvel made part of its copyrighted artistic work. But the Lai’s claim the new Iron Man was strikingly similar to “Radix,” and they asserted that they never gave Marvel permission to use their protected design. They blasted Marvel with cease-and-desist letters, then a lawsuit in Massachusetts after seeing the poster for Iron Man 3. They say that marketing material is “a copy of a promotional piece of art for the Radix comic.”

Marvel responded to the infringement claim, first arguing the Lais’ lawsuit venue was improper, and that Horizon planned legal discovery was just a move to “fish for facts.” Citing lack of jurisdiction for the case to proceed in the Bay State, U.S. District Judge Denise J. Casper tossed the suit in February, 2016, noting that most of the relevant witnesses and documents were in New York. The case got to its appropriate jurisdiction year later.

Dissimilarities discovered in characters’ suits 

But Oetken dismissed much of it under the substantial similarity test. He found the mechanized suit lacked elements that could be protected based on the scènes-à-faire doctrine. He noted that other federal courts have ruled that details of a character’s costume—including capes, masks, boots, and belts—are “stock elements of the superhero genre.” Tony Stark, aka Ironman, was suited up in armor, starting with the first-in-a-series 2008 movie.

Marvel focused in its defense on the artistic depiction of the mechanized suit, and that tactic paid off: Oetken rejected the Lais’ infringement claimes, partly by identifying differences in the color of the character’s boots—one blue, the other gray, while Iron Man’s were red and gold. Oetken also said their toe boxes differed in size and shape. He said jurors, acting as the average person, would see clear dissimilarities in the works, meaning one was not copied from the other.  He rejected the claim that Radix’s “fighting pose” could be copyright protected.

Oetken also ruled that the promotional posters shared similarities: the characters’ haircuts are alike, and their suits both have shoulder notches. There are blue lights in both images, and  the two posters’ overall coloration is similar.

Fans will be watching to see what the next step will be, now that Marvel has dinged up the Lais’ suit considerably.

Marvel has litigated before over its iconic characters, including the long-running dispute by Stan Lee Media over Spiderman. In December, 2014, the U.S. Court of Appeals for the Tenth Circuit refused to hear a claim that the legendary comic artist and not Marvel or Walt Disney Co. owned rights to Spider Man, after making a hazy agreement with Lee in 1998. This was the sixth court to strike down such claims, which the U.S. Court of Appeals for the Ninth Circuit had called “simply implausible.”