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IP/Entertainment Case Law Updates

Horizon Comics Productions, Inc. v. Marvel Entertainment, LLC.

In copyright infringement action against creators and distributors of Iron Man 3 alleging movie poster copied character in plaintiff’s comic book, district court grants summary judgment to defendants, finding no evidence that movie studio had access to plaintiff’s drawing, works were not strikingly similar, and Marvel’s poster was independently created.

Plaintiff Horizon Comics Productions Inc., owned by artists Ben and Ray Lai, sued Marvel Entertainment in 2016 alleging that the mechanized suit featured in the Iron Man film franchise and depictions of that suit in a promotional poster for Iron Man 3 were appropriated from a character in plaintiff’s comic book series. In 2017, the court dismissed the copyright infringement claims based on depictions of Iron Man’s armor in the film, but allowed a claim premised on the similarities between the Iron Man 3 poster and plaintiff’s drawing to proceed to discovery. (Read our summary of the district court’s decision here.) Both parties moved for summary judgment on the remaining claim.

To establish a claim of copyright infringement, a plaintiff must prove two elements: 1) ownership of a valid copyright, and 2) copying of constituent elements of the work that are original. Plaintiff’s copyright in the drawing was not contested for purposes of the motions. The focus of the arguments was whether the plaintiff’s work was actually copied. In order to establish actual copying, a plaintiff may introduce circumstantial evidence that shows 1) the creator of the infringing work has access to the copyrighted material, and 2) the two works share similarities that are probative of copying.

The district court rejected plaintiff’s primary theory of access, which alleged that certain Marvel employees who may have seen the drawing at a comic convention and on plaintiff’s website served as a nexus between the plaintiff’s drawing and the Marvel employees who created the Iron Man 3 poster. The Marvel employees who developed the Iron Man 3 poster denied ever seeing plaintiff’s drawing, and plaintiff failed to present evidence to support a contrary conclusion. Further, the court declined to infer that a reasonable possibility of access exists due merely to the “friendship” between the employees at issue. Accordingly, the court held that plaintiff failed to demonstrate that a genuine dispute of fact existed as to access because it did not introduce any “significant, affirmative and probative evidence” of a “particular chain of events,” sufficient to permit a reasonable jury to infer that the creators of the Iron Man 3 poster had a reasonable possibility of seeing plaintiff’s drawing. The court also rejected plaintiff’s alternative argument that the element of access was met because its work was widely disseminated.

In an attempt to prove copying without access, plaintiff argued that the two works were “so strikingly similar as to preclude the possibility of independent creation.” Relying solely upon an expert report, plaintiff alleged that both works exhibited similar designs “with respect to the figures’ anatomical structures, faces and heads, and camera views.” The court rejected this argument because the report did not offer an “unequivocal opinion” but rather suggested that some of the similar features required a more “careful viewing,” and it did not rule out the possibility that the poster was independently created. Furthermore, as Marvel pointed out and the court agreed, “there remain enough differences between the two works,” such as the “apparent differences in pose, differing placement of blue lights, and significantly different overall coloring,” to foreclose a finding of striking similarity. 

Finally, the court stated that Marvel introduced unrebutted evidence demonstrating that the poster was independently created. Thus, even if Horizon had succeeded in establishing a prima facie case of infringement, Marvel was entitled to summary judgment dismissing the copyright infringement claim.

Summary prepared by Melanie Howard and Peter Pottier