Case 1:16-cv-02499-JPO Document 47 Filed 03/27/17 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HORIZON COMICS PRODUCTIONS, INC.,
Plaintiff,

16-CV-2499 (JPO)

-vMARVEL ENTERTAINMENT, LLC, MVL
FILM FINANCE, LLC, MARVEL
WORLDWIDE INC., MARVEL STUDIOS,
LLC, DMG ENTERTAINMENT LLC,
PARAMOUNT PICTURES CORP., WALT
DISNEY STUDIOS MOTION PICTURES, INC.,
AND DOES 1 THROUGH 10, INCLUSIVE,

OPINION AND ORDER

Defendants.
J. PAUL OETKEN, District Judge:
Plaintiff Horizon Comics Productions, Inc. (“Horizon”) filed a complaint in this action
against Marvel Entertainment, LLC; MVL Film Finance, LLC; Marvel Worldwide, Inc.; Marvel
Studios, LLC; DMG Entertainment, LLC; Paramount Pictures Corp.; and Walt Disney Studios
Motion Pictures, Inc. (“Marvel” or “Defendants”), on April 4, 2016, alleging copyright
infringement under the Copyright Act, 17 U.S.C. § 101, et seq. (Dkt. No. 2 (“Compl.”).) Marvel
moves pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) to dismiss the Complaint, on
the grounds that the elements of Plaintiff’s works alleged to have been copied are not protectable
as a matter of law and are, in any event, not substantially similar to Defendants’ works. For the
reasons that follow, the motion is granted in part and denied in part.
I.

Background
The following facts are taken from the Complaint, except where otherwise noted, and are

presumed true for the purposes of this motion.
In 2001, comic book artists Ben and Ray Lai, the brothers who own Horizon, created a
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comic book series called Radix. (Compl. ¶¶ 2, 19.) The characters in that series wear “highlydetailed, futuristic, armored, and weaponized suits of body armor to fight enemies.” (Id. ¶ 19.)
The Complaint identifies the registrations for Plaintiff’s copyrights. (Id. ¶ 6).
Defendants are the copyright holders, creators, and distributors of the Iron Man and
Avenger movie franchises. (Id. ¶ 1.) In those films, the character Iron Man wears “mechanized
body armor” that Plaintiff alleges “appropriates the copyrighted artistic works of the Plaintiff
without authorization or attribution.” (Id. ¶ 4.)
Although the Iron Man character first appeared in 1963, the armor worn by the character
has changed over the years from a “spandex-like attire and minimal armor” to the “fully
mechanized suit of body armor” depicted in the Iron Man and Avenger movies. (Id. ¶¶ 24-25.)
According to the Complaint, this change took place after the Lai brothers submitted the Radix art
to Defendants and were hired by Marvel as artists. (Id. ¶¶ 3, 29.)
Horizon alleges that Marvel infringed its copyright by copying elements of Horizon’s
illustrations for use in the films. (Id. ¶ 36.) Marvel moves to dismiss on grounds that the
elements of Horizon’s works alleged to have been copied are not protectable as a matter of law
and are, in any event, not substantially similar to Defendants’ works. (Dkt. No. 36.)
II.

Legal Standard
“To survive a motion to dismiss pursuant to Federal Rule 12(b)(6), a plaintiff must plead

sufficient factual allegations ‘to state a claim to relief that is plausible on its face.’” Effie Film,
LLC v. Pomerance, 909 F. Supp. 2d 273, 290 (S.D.N.Y. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible ‘when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “In
deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe all
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claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences
in favor of the plaintiff.” Id. (internal quotation marks omitted) (quoting Pyatt v. Raymond, No.
10 Civ. 8764, 2011 WL 2078531, at *3 (S.D.N.Y. May 19, 2011), aff’d, 462 Fed. App’x 22 (2d
Cir. 2012)).
“In general, our review is limited to the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any documents incorporated
in the complaint by reference.” Id. (internal quotation marks omitted) (quoting McCarthy v. Dun
& Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). “Nonetheless, ‘in copyright infringement
cases the works themselves supersede and control contrary descriptions of them.’” Id. (quoting
Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986)).
“In order to establish a claim of copyright infringement, ‘a plaintiff with a valid copyright
must demonstrate that: (1) the defendant has 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.’” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
602 F.3d 57, 63 (2d Cir. 2010) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999)).
“Although substantial similarity analysis often presents questions of fact, where the court has
before it ‘all that is necessary to make a comparison of the works in question,’ it may rule on
‘substantial similarity as a matter of law on a Rule 12(b)(6) motion to dismiss.’” Effie Film, 909
F. Supp. 2d at 290-91 (quoting Peter F. Gaito, 602 F.3d at 65). This is because, in considering
whether the works are substantially similar, “what is required is only a visual comparison of the
works.” Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 766 (2d Cir. 1991); see Peter F.
Gaito, 602 F.3d at 64.
“The determination of the extent of similarity that will constitute a substantial, and
hence infringing, similarity presents one of the most difficult questions in copyright law, and one
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that is the least susceptible of helpful generalizations.” 4 Nimmer on Copyright § 13.03[A]
(2015); see also Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.
1960) (“The test for infringement of a copyright is of necessity vague.”). Where the disputed
works are entirely protectable, “[t]he standard test for substantial similarity between two items is
whether an ‘ordinary observer, unless he set out to detect the disparities, would be disposed to
overlook them, and regard [the] aesthetic appeal as the same.’” Yurman Design, Inc. v. PAJ,
Inc., 262 F.3d 101, 111 (2d Cir. 2001) (internal quotation marks omitted) (quoting Hamil Am.
Inc., 193 F.3d at 100).
However, when a work contains both protectable and unprotectable elements, the
analysis is “more discerning.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 141 (2d Cir.
1992). In particular, the Court “must attempt to extract the unprotectible elements from our
consideration and ask whether the protectible elements, standing alone, are substantially
similar.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995). For
example, “it is well established that ‘scènes à faire,’ which involve ‘incidents, characters or
settings which are as a practical matter indispensable, or at least standard, in the treatment of a
given topic’ are ‘not copyrightable as a matter of law.’” Effie Film, 909 F. Supp. 2d at 292
(quoting Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir. 1980)). Where the
copyright holder alleges substantial similarity, therefore, the Court looks to “whether the alleged
‘similarities are due to protected aesthetic expressions original to the allegedly infringed work, or
whether the similarity is to something in the original that is free for the taking,’” including
scènes à faire. Effie Film, 909 F. Supp. 2d at 291 (quoting Peter F. Gaito, 602 F.3d at 67).
Yet even when engaging in the “discerning” substantial similarity inquiry, courts “have
disavowed any notion that we are required to dissect [the works] into their separate components,
and compare only those elements which are in themselves copyrightable.” Id. at 292 (alteration
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in original) (internal quotation marks omitted) (quoting Peter F. Gaito, 602 F.3d at 66). The
inquiry is more holistic, as the Court “compar[es] the contested [work’s] total concept and
overall feel with that of the allegedly infringed work, as instructed by our good eyes and
common sense.” Id. (second alteration in original) (internal quotation marks omitted) (quoting
Peter F. Gaito, 602 F.3d at 66). For copying to be unlawful, the “works must share a similarity
of expression, such as ‘similarities of treatment, details, scenes, events, and characterization,’”
Hogan v. DC Comics, 48 F. Supp. 2d 298, 309 (S.D.N.Y. 1999) (quoting Reyher v. Children’s
Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976)), or a similarity in their “total concept or
feel,” id. (quoting Williams v. Crichton, 84 F.3d 581, 589 (2d Cir. 1996)). Such an approach
allows for a finding of copyright 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.” Tufenkian Imp./Exp. Ventures, Inc. v. Einstein
Moomjy, Inc., 338 F.3d 127, 134 (2d Cir. 2003). In this way, the Court’s duty is to focus on
whether the alleged infringer has misappropriated “the original way in which the author has
‘selected, coordinated, and arranged’ the elements of his or her work.” Knitwaves Inc., 71 F.3d
at 1004 (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991)).
III.

Discussion
In moving to dismiss, Marvel argues both that the alleged similarities between the works

are not protectable expression and that no reasonable juror could find substantial similarity. See
Peter F. Gaito, 602 F.3d at 63 (“[I]t is entirely appropriate for a district court to resolve [the
question of substantial similarity] as a matter of law, ‘either because the similarity between two
works concerns only non-copyrightable elements of the plaintiff’s work, or because no
reasonable jury, properly instructed, could find that the two works are substantially similar.’”
(quoting Warner Bros. Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 240 (2d Cir. 1983)).
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Marvel interprets the Complaint to assert copyright infringement premised on the “basic
assertion . . . that the Iron Man suits are substantially similar to artwork in the Radix Materials
because both Iron Man and at least one character from Radix wear ‘highly detailed, mechanized
suits of body armor,’” a concept which it argues is too general to qualify for copyright
protection. (Dkt. No. 36 at 11 (quoting Compl. ¶¶ 2-4).) For its part, Horizon accuses Marvel of
mischaracterizing the Complaint and clarifies its infringement position with respect to the Iron
Man promotional materials. In particular, it notes that its allegations of substantial similarities
are between (1) a promotional poster for Iron Man 3 and a promotional piece of art for the Radix
comic (Dkt. No. 45 at 6 (citing Compl. Ex. B)); 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 (Dkt.
No. 45 at 5-6). 1 The Court addresses each in turn.
A.

The Promotional Art

The Complaint alleges that “Defendants’ poster promoting Iron Man 3 . . . is a copy of a
promotional piece of art for the Radix comic.” (Compl. ¶ 31.) Exhibit B to the Complaint
displays the images side-by-side:

1

Horizon explicitly disclaims that its copyright infringement allegations stem from the
plot line of the Radix comics or its characters. (See Dkt. No. 45 at 4 n.1; id. at 10.)
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(Compl. Ex. B.)
The Court first notes that it will apply the “more discerning” substantial similarity
analysis because the work contains both protectable and unprotectable elements, as discussed
below. Laureyssens, 964 F.2d at 141. In order to grant this motion to dismiss as a matter of law,
therefore, the Court must find that “no reasonable jury, properly instructed, could find that the
two works are substantially similar.” Peter F. Gaito, 602 F.3d at 63 (quoting Warner Bros., 720
F.2d at 240). The Court first “attempt[s] to extract the unprotectible elements from our
consideration and ask[s] whether the protectible elements, standing alone, are substantially
similar.” Knitwaves Inc., 71 F.3d at 1002.
Here, Marvel argues that both the “idea of a highly mechanized suit of armor” and the

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“fighting pose” 2 are unprotectable elements. (Dkt. No. 36 at 11, 17.) The Court agrees: both
the mechanized suits of armor and the pose depicted in the posters are scènes à faire, and
therefore unprotectable, in the comic book or superhero genre.
First, Horizon does not dispute Marvel’s argument that the concept of a mechanized suit
of armor to fight enemies is unprotectable. (See Dkt. No. 45 at 8.) The Court concludes,
therefore, that the presence of a mechanized suit of armor in both images in Exhibit B to the
Complaint cannot give rise to a finding of substantial similarity. Cf. Davis v. Walt Disney Co.,
393 F. Supp. 2d 839, 847 (D. Minn. 2005) (finding that “superhero capes, leotards, masks, chest
emblems, boots, belts, and flared gloves” are “stock elements of the superhero genre.”), aff’d,
430 F.3d 901 (8th Cir. 2005).
Second, the “fighting pose” depicted in the photos is a scène à faire in the superhero or
comic book context. Indeed, when evaluating a claim of copyright infringement in action
figures, “the Court of Appeals [for the Second Circuit] has held that a fighting pose is an
unprotectable idea under copyright law.” Cabell v. Sony Pictures Entm’t, Inc., 714 F. Supp. 2d
452, 459 (S.D.N.Y. 2010) (citing Mattel, Inc. v. Azrak–Hamway Int’l, Inc., 724 F.2d 357, 360
(2d Cir. 1983)), aff’d, 425 F. App’x 42 (2d Cir. 2011). In Azrak–Hamway, the Second Circuit
held that a 5-½ inch Warlord doll did not infringe a 5-½ inch Masters of the Universe Doll. That
court concluded that, “[t]hough the dolls’ bodies are very similar, nearly all of the similarity can
be attributed to the fact that both are artist’s renderings of the same unprotectable idea—a
superhuman muscleman crouching in what since Neanderthal times has been a traditional

2

The parties dispute whether the pose depicted in Exhibit B to the Complaint is fairly
described as a “fighting pose.” (See Dkt. No. 45 at 20 (referring to the pose as a “getting up after
being knocked down” pose)). The Court does not find that this is a dispositive distinction as
both descriptions warrant the same result: this is a pose and posture common to the superhero
and comic book genres.
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fighting pose.” 3 Azrak–Hamway, 724 F.2d at 360.
Turning to the particularized expression of the idea, Horizon attempts to draw
comparisons between the images—beyond those similarities that are attributable to the
unprotectable pose or the fact that each character is wearing mechanized armor—by reference to
the hairstyle of each character, the presence of blue lights in the suit, similar notches in the
shoulder covers, and the color of the suits. (See Dkt. No. 45 at 15 (detailing the “Elements of
Substantial Similarity between Iron Man 3 Poster and Radix Promotional Art”).)
Horizon does identify some similarities between the suits; however, they are not
identical. First, the hairstyles of the characters are quite similar. Marvel contends that the Radix

3

Horizon argues that the Azrak-Hamway case is “inapposite because it was before the
court on a motion for preliminary injunction, which included an evidentiary hearing, and not on a
motion to dismiss.” (Dkt. No. 45 at 7.) In that same vein, Horizon argues generally that a
finding that the “fight pose” is a scène à faire is premature, as no evidentiary hearing has taken
place and “there is no basis for Defendants’ contention that the pose of the figure is an unprotectable element. (Id. at 20.) It argues that “the Court must liberally construe all claims,
accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor
of the plaintiff.” (Id. (quoting Iqbal, 556 U.S. at 678).)
However, the Court does not find compelling the argument that the procedural posture of
Azrak-Hamway detracts from its relevance in this case. See Eng v. Baldwin, No. 14 Civ. 1644,
2014 WL 2465763, at *2 (E.D.N.Y. May 30, 2014) (relying on Azrak-Hamway in an order on a
motion to dismiss for the proposition that “generalized concepts . . . cannot make out an action
for infringement of material protected by the copyright laws”).
Second, a determination of scènes à faire is appropriate at the motion-to-dismiss stage.
See, e.g., Williams v. A & E Television Networks, 122 F. Supp. 3d 157, 163 (S.D.N.Y. 2015)
(granting a motion to dismiss based on a determination of scènes à faire). This is analogous to
the patent eligibility inquiry under 35 U.S.C. § 101 of the United States Patent Laws. In that
context, the Federal Circuit has held that, “it is possible and proper to determine patent eligibility
under 35 U.S.C. § 101 on a Rule 12(b)(6) motion,” unless “plausible factual allegations preclude
dismissing a case under § 101 where, for example, ‘nothing on th[e] record . . . refutes those
allegations as a matter of law or justifies dismissal under Rule 12(b)(6).” FairWarning IP, LLC
v. Iatric Sys., Inc., 839 F.3d 1089, 1097 (Fed. Cir. 2016) (citations omitted). Horizon makes no
plausible factual allegation that the pose in question is anything other than a scène à faire, while
Marvel convincingly argues that such a pose is commonplace in the genre. See generally
Duncan Robson, Three Point Landing, YOUTUBE (May 5, 2012),
https://youtu.be/mgOtPXDyKjA.
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character “wears a familiar crew cut, with the hair immediately above his ear buzzed to the point
of nearly being clean-shaven, whereas Iron Man does not wear a crew cut in any respect.” (Dkt.
No. 46 at 5 n.9.) Upon inspection, however, though there are some differences, the haircuts do
present a similar look. Second, both suits make use of the element of blue lights. The blue lights
present in the suits may be executed in different ways—Iron Man’s suit shows a round light
emitted from one location, directly at the center of the chest, while the Radix suit shows four
diamond-shaped blue lights around the chest as well as a light on the bent left knee—but both do
have blue lights in the chest plate of the suit. Third, the notches in the shoulder covers differ in
their details, though they do look generally similar. Iron Man’s shoulder is capped with a boxy,
gold shoulder cover, while the Radix suit is rounded. Fourth, the color of the suits differs. Iron
Man’s suit is primarily gold and red, while the Radix suit is primarily blue and gray, with red
accents limited to the chest and lower abdomen. However, given the lighting and shading in the
images and the shared use of a similar shade of red, the coloration of the images does evince
some similarity. These specific similarities and differences are significant, but do not end the
inquiry.
The Court must look beyond the works as dissected “into their separate components,” and
must “compar[e] the contested [work’s] total concept and overall feel with that of the allegedly
infringed work, as instructed by our good eyes and common sense.” Effie Film, 909 F. Supp. 2d
at 292 (second alteration in original) (internal quotation marks omitted) (quoting Peter F. Gaito,
602 F.3d at 66). The Court concludes that the works do “share a similarity of expression” or a
similarity in their “total concept or feel” sufficient to survive a motion to dismiss. Hogan, 48 F.
Supp. 2d at 309 (quoting Williams, 84 F.3d at 589). This is not a case where only noncopyrightable 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
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substantially similar” based on their “total concept and overall feel.” Peter F. Gaito, 602 F.3d at
63 (emphasis added). As such, Marvel’s motion to dismiss Horizon’s claim of copyright
infringement as between the promotional poster for Iron Man 3 and the promotional piece of art
for the Radix comic, as shown in Exhibit B to the Complaint, is denied.
B.

The Mechanized Body Armor

Turning to the allegation that the artistic depictions of mechanized body armor used in
the Iron Man film copies from the Radix comics, the Court concludes that Plaintiff has failed to
state a claim. This is so because the use of a mechanized suit of armor, as described above, is a
standard scène à faire for the superhero genre. Moreover, the works themselves demonstrate that
no reasonable jury could find a “substantial similarity” between the protectable elements of the
suits as a matter of law.
Horizon argues that “the Radix and Iron Man artwork possess similarities that go far
beyond both depicting a generic, armored superhero,” giving rise to its claim of copyright
infringement based on Marvel’s alleged copying of the mechanized body armor from the Radix
comics for use in its Iron Man films. (Dkt. No. 45 at 9.) Horizon is claiming copyright
protection in the “particular unique artistic rendering of the Radix armor.” (Id. at 10.)
Beyond the elements discussed above, Horizon relies on images that it argues
demonstrate substantial similarity between certain features of the mechanized body armor of the
characters, such as the boots and shin covers:

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(Dkt. No. 45 at 16 (citing Dkt. No. 37 (“Litvak Decl.”) Exs. O-63, F).)
First, the Court notes that “manipulat[ing] the images . . . by cropping them, rotating
them, and the like” are “tactics” that “cannot be used to bolster an infringement claim.” Dean v.
Cameron, 53 F. Supp. 3d 641, 647-48 (S.D.N.Y. 2014). Even putting that aside, however, no
reasonable juror could find that there is substantial similarity between the Iron Man and Radix
boots as depicted. The boots have completely different colors (Radix: blue and gray; Iron Man:
red and gold); the heels appear to differ (Radix: heel with spur; Iron Man: gold square near
ankle); the top-foot is of a totally separate nature (Radix: angular and receding into the shin
cover; Iron Man: gold and protruding from the toe box); and the toe boxes are differently sized
and shaped (Radix: rounded and covers only the toes; Iron Man: boxier and covers more of the
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foot). There appears to be no significant overlap in the expression of the idea of an armored boot
as implemented by the two entities.
Horizon further alleges that the shin design of the characters’ armor is “very similar,” and
provides the following images in support:

(Dkt. No. 45 at 17 (citing Litvak Decl. Exs. O-63, B, & C-8).) The difference in these images is

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readily apparent: they vary significantly in color and design. 4 Even looking only at the cropped
images, the images are obviously distinct. Iron Man’s shin is asymmetrical with vents or some
other functional element on the lateral side, whereas the Radix characters’ design is more
symmetrical. Iron Man sports a thin silver rectangle that separates the gold on his shin from the
gold on his foot, no such element is found in the Radix characters’ armor. And Iron Man’s gold
shin covering has a divot not found in the Radix characters’ armor. These and more differences
belie any claim of copyright infringement.
An average observer would clearly see the dissimilarities between the works and would
not conclude that one was copied from the other. See Cabell, 714 F. Supp. 2d at 460. The
mechanized armor employed by Marvel in its Iron Man and Avengers films are, as a matter of
law, not substantially similar to those created by Horizon, and no reasonable juror, properly
instructed, could conclude otherwise.
IV.

Conclusion
For the foregoing reasons, Marvel’s motion to dismiss the complaint is GRANTED IN

4

An examination of the uncropped images also demonstrates that the suits also differ in
significant respects. Dean, 53 F.Supp.3d at 647 (the proper inquiry is “whether a lay observer
would consider the works as a whole substantially similar to one another” (citing Williams v.
Crichton, 84 F.3d 581, 590 (2d Cir. 1996)). The Court identifies a few key differences, though
there are many more that can be detailed: Iron Man wears a helmet; the colors differ; Iron Man
sports large, metal straps on his shoulder; there is no blading on Iron Man’s arms or legs (nor on
one of the Radix character’s arms or legs); Iron Man’s chest has a circular blue orb (the Radix
characters either have multiple blue lights or none at all); and Iron Man’s abdomen is covered in
crescent-shaped gold plates. (See Dkt. No. 46 at 3-4.)
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PART and DENIED IN PART.
The Clerk of Court is disrected to close the motion at Dkt. No. 35.
SO ORDERED.
Dated: March 27, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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