Comic Artists Claim Copyright On Metallic Suits And The Three Point Landing

[Mike]

Oh boy. Another day, another copyright case in which plaintiffs don't seem to understand the basic concept of the idea v. expression dichotomy in copyright law. Once again: you cannot copyright an idea. You can only copyright a particular expression of your idea. And, yes, the line between the two has sometimes been blurred, but it doesn't change the basics. Marc Randazza now alerts us to a nutty case in which two comic artist brothers -- who at least for a time were employed by Marvel Comics -- are now suing Marvel comics for supposedly infringing on the brothers' copyright on... superheroes in armored suits and the three point landing. I'm not joking. The brothers, Ben and Ray Lai, created a comic book series called Radix in 2001, and started a company, Horizon Comics, which holds the copyright on Radix. At some later date, the brothers went to work for Marvel. They now claim that they invented both the idea of a superhero wearing body armor and the (now cliché'd) three point landing action -- and that's proof that Marvel infringed on their copyright:

It was not until after the Lai brothers' submitted their work in Radix to Marvel that Marvel began depicting Iron Man wearing the Suits. The Suits are substantially similar to the armor depicted in the Radix Materials years earlier. Neither the Lai brothers nor Plaintiff authorized any of the Defendants to exploit the Radix Materials in these or any other ways.

The depiction of Iron Man in the Iron Man Materials infringes Plaintiff’s rights in its copyrighted Radix Materials.

For example, Defendants' poster promoting Iron Man 3 (“Poster”) is a copy of a promotional piece of art for the Radix comic. An image of the Poster, alongside promotional art from Radix created years earlier, is attached as Exhibit B. The Iron Man character, including the Suit, as depicted in the Poster is the same or substantially similar to the character as he appears throughout the Iron Man Materials.

Here's "Exhibit B" in case you were wondering:

Marc Randazza -- with whom I often disagree with on copyright issues -- notes just how ridiculous this is and points out that the claims here make no sense:

Neither mechanized body armor nor the three-point landing are new to the comic world. For armor, characters of note may include Master Chief from Halo, Batman, Transformers, and perhaps the Pacific Rim comic release that coincided with the movie in 2013. Horizon seeking to profiteer here would mean that they could, I suppose, seek redress against DC for Superman’s occasional adaptation of the pose, or other places in the Anime realm including characters from Kuogane Pukapuka Tai and Naruto (which has been around since 1997). Although one may think to consider that three-point landings of note include Black Widow and Spiderman, both Marvel characters begs the question does Marvel favor the three-point stance, and did this fancy come about after Lais’ involvement?

Either way, the three-point stance and the armored wardrobe cannot so simply be claimed by the Lai brothers. We should reflect on this as an example of how not to use our lawyering super powers to crush the comic realm into copyright compliance. Copyright indeed should, though it doesn't always, cover creative and novel characters in comics, books, and movies, though we must draw the line at common tropes used to further artistic invention.

The Three Point Landing is such a cliché at this point that I hardly think it could be deemed copyrightable. See, e.g., Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999) (holding that plaintiff failed to establish substantial similarity between two films portraying detectives investigating murder in small town. The court reasoned "scenes a faire, 'sequences of events which necessarily follow from a common theme,' are not protectable.")

And for further support, he posts this little video highlighting the cliché that has become the "three point landing"

We have to get past this stupid concept that every possible idea is "ownable" and that using common clichés and tropes requires payment (or even direct acknowledgement for merely homage). That's not how culture has ever worked and to pretend that's how copyright law is supposed to work only leads to problems.

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