In April 2016, Horizon brought a lawsuit against Marvel alleging copyright infringement, saying that the Iron Man 3 poster was had copied a promotional piece of art for the Radix comic (called the “Caliban drawing”). In March 2017, Radix was able to succeed against Marvel’s motion to dismiss, arguing that there was a “total concept and feel” to the images in question. This final summary judgment motion hinges on 3 parts: Access, striking similarity, and independent creation. On a motion for summary judgment for Marvel, it was determined that Marvel did not infringe on Horizon’s copyright.
Access asks if the alleged infringer had a reasonable possibility of accessing the prior work in question, thus allowing the alleged infringer to copy it. In order to demonstrate access, the plaintiff must show either 1. a particular chain of events from his/her work to the creators of the infringing work, or 2. the plaintiff’s work was “widely disseminated”.
Horizon alleges that because other Marvel employees knew of the Radix comic, and the art in question, that it constitutes access. The Caliban drawing was featured on Horizon’s website. The Court said, “there is virtually no evidence in the record that shows any one of these individuals either would have seen the Caliban drawing or would have been involved in the Iron Man 3 Poster design, let alone both. Horizon’s arguments that these individuals could provide an access nexus is founded on nothing more than speculation.”
Horizon also alleged that the Caliban drawing had been widely disseminated, noting the popularity of the comic. The popularity of the comic does not mean that the Caliban drawing was widely disseminated. Also, the Radix series did not contain the Caliban drawing itself.
Horizon then moved to their argument of striking similarity, attempting to show an inference of copying through the similarity of the works themselves. Horizon relied on an expert report that described similarities such as faces, heads, anatomical structures, and more, but the Court ended up saying that the report is not enough to reach the stringent standard of striking similarity.
The last argument is independent creation. Independent creation occurs when two or more people independently create the same or similar work. Independent creation is a valid defense against copyright infringement. The Court said “In contrast to Horizon’s virtually non-existent evidence of copying, Marvel has introduced unrebutted evidence showing its independent creation of the Iron Man 3 Poster.” Marvel noted that there were inspiration boards and sketches, and arranged a photo shoot with RDJ to produce photos for the poster.
For the full decision, read here.
Assaad Lyn: Attorney At Law | © 2022 