Superhero Scènes à Faire

Marvel granted a partial dismissal of copyright infringement suit.
April 10, 2017

On Monday, March 27, District Court Judge Paul Oetken granted Marvel a partial dismissal of a suit brought by Ben and Ray Lai for copyright infringement.[1] The Lai brothers run Horizon Comics Productions in Massachusetts and have brought a claim alleging that the joint defendants (Marvel, Disney, and their subsidiaries) had appropriated the armor worn by characters in a comic book series created by the brothers called Radix.[2] The original comic was a sci-fi series first published in 2001 that depicted a society where technological advancement was held as the only objective.[3] In the comic, the characters are described to be wearing “highly detailed, futuristic, armored, and weaponized suits of body armor to fight enemies.”[4]

The Lai brothers assert that Marvel stole the look of the body armor designed by them in the comic and that defendants generally copied “elements of Horizon’s illustrations for use in the films”.[5] Specifically, the Plaintiff alleges there are substantial similarities between promotional posters for Iron Man 3 and for the Radix comic.[6] They also argue that the artistic depictions of the mechanized body armor used in both works are substantially similar.[7] Defendants moved to dismiss on the grounds that the similarities between the works are not protectable expressions that are substantially similar.[8]

The opinion begins with an analysis of the substantial similarity between both promotional posters. In order to grant Defendants a motion to dismiss, the Court must conclude that a reasonable jury would not find the works to be substantially similar.[9] The Court analyzes the posters to determine which aspects of it are scènes à faire and unprotectable, and concludes that the mechanized suit of armor and the pose depicted are indeed scènes à faire. Horizon highlights the particularized expression of the posters such as the blue lights of the suit and the hairstyle of the characters.[10] The Court takes into consideration the total look and feel of both works and concludes the works do “share a similarity of expression” to survive a motion to dismiss.[11] Conversely, the Court comes to the conclusion that the Plaintiff had failed to state a claim for the artistic depictions of the mechanized body armor, due to mechanized armor being standard for superheroes.[12]

The standard for whether there is substantial similarity between copyrightable expressions is the “ordinary observer” test.[13] If the work is so similar to the plaintiff’s protected expression that an ordinary person would conclude the defendant appropriated the work, infringement is found.[14] A visual comparison that keeps in mind the theoretical foundation of copyright law is necessary when doing this analysis.[15] Judge Oetken correctly determined that the pose and mechanized armor were unprotectable aspects of copyright. While it may be true that Marvel was influenced by the work of the Lai brothers, these aspects of both works are readily found in the superhero genre.[16] This determination fall in line with the idea-expression dichotomy, a key tenet of copyright law which states that copyright law may only protect the expression of an idea and not the idea itself.[17]

Although there were clearly aspects of the works that were not protectable by copyright, the two images do appear to be similar. Taking into consideration the totality of the images in question is important here because an infringer would likely take care to incorporate original elements to their own work in an attempt to distinguish it from the original. The Court here recognizes this, and correctly rejects Marvel’s motion to dismiss.


[1] See Eriq Gardner, Judge Allows Copyright Lawsuit Against Marvel Over ‘Iron Man 3’ Poster, The Hollywood Reporter, (March 28, 2017)

[2] See Daniel S. Levine, Radix: 5 Fast Facts You Need To Know, Heavy, (March 29, 2017)

[3] See Radix #1, Comic Vine (Sept. 30, 2013)

[4] Horizon Comics Prods. v. Marvel Entm't, LLC, 2017 U.S. Dist. LEXIS 44662, *2, 122 U.S.P.Q.2D (BNA) 1081, 1082 (S.D.N.Y. Mar. 27, 2017).

[5] Id. at *3.

[6] Id. at *8.

[7] Id.

[8] Id. at *3.

[9] Id. at *13.

[10] Id. at *10-11.

[11] Id. at *12

[12] Id. at *13.

[13] See Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 (1st Cir. Mass. 2001).

[14] Id.

[15] Id. at 33.

[16] See Horizon at *9.

[17] See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350, 111 S. Ct. 1282, 1290, 113 L. Ed. 2d 358 (1991)