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Horizon Comics Productions, Inc. v. Marvel Entertainment LLC

United States District Court, S.D. New York

March 27, 2017

HORIZON COMICS PRODUCTIONS, INC., Plaintiff,
v.
MARVEL 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, Defendants.

          OPINION AND ORDER

          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 comic book series called Radix. (Compl. ¶¶ 2, 19.) The characters in that series wear “highly-detailed, 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 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 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 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, ...


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