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

from the idea-v-expression dept

Wed, Apr 29th 2015 10:45am — Mike Masnick

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.

Horizon v Marvel (PDF)Horizon v Marvel (Text)

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Filed Under: ben lai, copyright, expression, idea, iron man, metallic suits, radix, ray lai, three point landing
Companies: disney, horizon comics, marvel

49 Comments

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Reader Comments

The First Word

“

Re: Wait...

Wikipedia says that Iron Man debuted in 1963, actually.

But do you know what was published in 1959?

That would Heinlein's Starship Troopers. Guess what tech was featured in that novel?

While I'm on the topic, I don't think Mike or Marc caught the fact that many of the claims made in the filing are utter nonsense. I covered this lawsuit a couple days ago, and I noticed that the Iron Man suit was " a fully mechanized suit of body armor" since at least the 1990s. I'm not much of a comic book reader, but I can tell you that the cartoons had suits which fit the description.

There are also graphics which show the various depictions of the Iron Man suit (see my post). Most of the later ones looked like "fully mechanized suit(s) of body armor".

This lawsuit isn't just ridiculous, it is also utterly bogus.

—Nate

”

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Berenerd (profile), 29 Apr 2015 @ 11:06am

Wait...
Ironman came out originally in 1959 (http://marvel.wikia.com/Iron_Man_Comic_Books) Are they claiming they were first or just the first to do the man in metal suit doing 3 point stance? Because, technically, that was done before in football. Though they were wearing pads. Might be different.
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Anonymous Coward, 29 Apr 2015 @ 11:07am

I HOPE THEY WIN!!!!
This way, maybe... just maybe those copyright maximalist's turds at MafiAA and those like them will see maybe, just maybe a smidgen of the light!
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Marc John Randazza (profile), 29 Apr 2015 @ 11:07am

:)
Yep, when a copyright case puts me and Masnick comfortably in the same boat, there's something unquestionably rotten about the case!
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Anonymous Coward, 29 Apr 2015 @ 11:09am

3 point stance? Classic spider-man pose. Quick search on the internet gives me pictures back to the 70's.
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Anonymous Coward, 29 Apr 2015 @ 11:12am

Re: Wait...
Doesn't fucking matter. You can't copyright a stance or a generic style of clothing.
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Ultraman, 29 Apr 2015 @ 11:14am

They all are an emulation of me.
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Gumnos (profile), 29 Apr 2015 @ 11:17am

Re: Back to Spiderman?
Try Hellenistic Greece for three-point stances. ☺
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 Apr 2015 @ 11:19am

Don't panic! It'll go nowhere.
Enough anomaly.

As usual, you're using this to blank out that millions of people every day use copyright rightly to just get deserved income from their own work.
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Anonymous Coward, 29 Apr 2015 @ 11:20am

Don't panic! It'll go nowhere.
Enough anomaly.

As usual, you're using this to blank out that millions of people every day use copyright rightly to just get deserved income from their own work.
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Anonymous Coward, 29 Apr 2015 @ 11:21am

The part of the complaint that doesn't make sense is the claim that prior to the movies, Iron Man was just wearing spandex and minimal armor. If he's wearing spandex, it isn't visible if he's wearing it under his head-to-toe metal armor even in the earliest versions. Do they not understand that the yellow parts of the armor are actual metal parts with working mechanisms inside them? Drawing the details just took a lot of time back in the day.

But even by 1994 when the What If Iron Man Sold Out? issue came out, there were Iron Man suit models that had all the techno-details on the armor. And when the armor gets shredded by Magneto, you see all the details on the inside.

Their claim seems to misunderstand (intentionally?) a fundamental aspect of Iron Man's armor.
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Anonymous Coward, 29 Apr 2015 @ 11:22am

Don't panic! It'll go nowhere.
Enough anomaly.

As usual, you're using this to blank out that millions of people every day use copyright rightly to just get deserved income from their own work.
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Anonymous Coward, 29 Apr 2015 @ 11:26am

Re: Don't panic! It'll go nowhere.
Yes, this article completely undermines all the money those people are making. People will stop paying to enjoy copyrighted works if we continue to talk about every single one of the numerous "exceptions" that pop up when copyright is abused or attempted to be abused. Good point.
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AudibleNod (profile), 29 Apr 2015 @ 11:31am

3-point landing or standing up?
I saw the Iron Man poster and assumed he was standing up from a fall. Like the chips were down and he took a licking and was now ready to kick some butt. I guess I could see how it looks like a 3-point landing but I saw his pose as more of a getting up from being kicked down.
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DannyB (profile), 29 Apr 2015 @ 11:39am

Re: Don't panic! It'll go nowhere.
How many anomalies before its no longer an anomaly and is the normal pattern of abuse?
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Nate (profile), 29 Apr 2015 @ 11:44am

Re: Wait...
Wikipedia says that Iron Man debuted in 1963, actually.

But do you know what was published in 1959?

That would Heinlein's Starship Troopers. Guess what tech was featured in that novel?

While I'm on the topic, I don't think Mike or Marc caught the fact that many of the claims made in the filing are utter nonsense. I covered this lawsuit a couple days ago, and I noticed that the Iron Man suit was " a fully mechanized suit of body armor" since at least the 1990s. I'm not much of a comic book reader, but I can tell you that the cartoons had suits which fit the description.

There are also graphics which show the various depictions of the Iron Man suit (see my post). Most of the later ones looked like "fully mechanized suit(s) of body armor".

This lawsuit isn't just ridiculous, it is also utterly bogus.
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Spaceman Spiff (profile), 29 Apr 2015 @ 11:45am

RIght!
Heck, I do a three-point landing when I roll out of bed in the morning. Does that mean I owe these pinheads royalties for getting up for work?

Signed,

Iron man
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radix (profile), 29 Apr 2015 @ 11:46am

I've been using this name since 1996
They registered "Radix" in 2001. How much do they owe me?
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Roger Strong (profile), 29 Apr 2015 @ 11:51am

Seriously.....?
The three point landing was already cliché'd when the Matrix Reloaded movie trailer featured one in late 2002.

As for powered armor suits, credit goes to Robert Heinlein's Starship Troopers back in 1959, if not the real-life first powered exoskeleton back in 1890.
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Anonymous Anonymous Coward, 29 Apr 2015 @ 11:53am

Prior Art
Wait, copyright has prior art? I thought that was for patents. Could we include obviousness to kill copyright too?

/s
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Nate (profile), 29 Apr 2015 @ 11:56am

Re:
"Do they not understand that the yellow parts of the armor are actual metal parts with working mechanisms inside them?"

I think they intentionally misunderstood that point. This is copyright trolling, pure and simple.
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Roger Strong (profile), 29 Apr 2015 @ 11:56am

Re: I've been using this name since 1996
Get in line.

Wikipedia: Radix (disambiguation)
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radix (profile), 29 Apr 2015 @ 12:13pm

Re: Re: I've been using this name since 1996
Oh no you don't...
By their own filing, prior use is no defense. It's just about going after those with the bigger pockets. I can't get enough out of the freshwater snail coffers, so these guys will have to do.
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Comic Book Guy, Jr., 29 Apr 2015 @ 12:22pm

Re: Wait...
"Ironman came out originally in 1959..."

Actually, the comic book Tales of Suspense started in 1959. Iron Man first appeared in Tales of Suspense #39, March, 1963.

(Best read in the voice of comic book guy from the Simpsons.)
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Roger Strong (profile), 29 Apr 2015 @ 12:27pm

Re: Seriously.....?
Also the first Matrix movie had three-point landings in 1999. In the opening scene Trinity jumps from rooftop to rooftop across a street. An Agent jumps after her and does a three-point landing.

If it hadn't been a cliché by then, it quickly became one after.
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Roger Strong (profile), 29 Apr 2015 @ 12:31pm

Re: Re: Re: I've been using this name since 1996
How do we know that you're not a shill for Big Gastropod?
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Anonymous Coward, 29 Apr 2015 @ 12:55pm

Re: Re: Don't panic! It'll go nowhere.
There isn't any copyrighted works in question here. WTF r u talking about?
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Anonymous Coward, 29 Apr 2015 @ 1:02pm

"We have to get past this stupid concept that every possible idea is "ownable" ..."

I think the feeling entitled is more what they are thinking.
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orbitalinsertion (profile), 29 Apr 2015 @ 1:21pm

Re: Re: Don't panic! It'll go nowhere.
Er, once upon a time?
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Anonymous Coward, 29 Apr 2015 @ 1:23pm

Re:
I can't tell from the 3 point landing poses pictured if they also bear your 'trademark/copyrighted/patented' zipper down the back of your suit. ;)
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tqk (profile), 29 Apr 2015 @ 1:23pm

Lawyers.
Don't lawyers have some sort of obligation to inform their clients when the latter's understanding of the law contradicts what the law actually says or allows?

How does the Radix lawyer get away with defrauding his client like this?
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Blackfiredragon13 (profile), 29 Apr 2015 @ 1:27pm

Re: :)
Suprised. Never would have figured you'd have an profile here.
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DB (profile), 29 Apr 2015 @ 1:44pm

"(Best read in the voice of comic book guy from the Simpsons.)"

That totally works!
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John Fenderson (profile), 29 Apr 2015 @ 1:47pm

Re: Lawyers.
I always assumed so. I sure hope so. 99.9% of the time that I've been to see an attorney, it's been so he can explain the law to me.
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meh, 29 Apr 2015 @ 1:56pm

meh
3 point pose.. like in a football lineup?

As for an exosuit, they just have to ignore years of pop culture ranging from movies, anime, video games, and other comics.
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Anonymous Coward, 29 Apr 2015 @ 1:59pm

Re: I HOPE THEY WIN!!!!
If they win the MPAA and RIAA will use similarity to take down as many self published works as they can. Youtube would be drowned with DMCAA notices.
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Anonymous Coward, 29 Apr 2015 @ 2:46pm

Since the 80s iron man has had many different designs of suit of armour,usually red and gold colored,
the radix suit uses different shapes and colors ,
from the iron man suit .
Theres loads of characters in asian sf manga comics ,
which have worned powered suits of armour before 2001 ,
the three point landing is a standard pose in sf or superhero comics .
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Chronno S. Trigger (profile), 29 Apr 2015 @ 4:30pm

Re: 3-point landing or standing up?
I think the Iron Man 3 poster was just suppose to be an example of them "stealing" the look from Radix. It wasn't an example of the 3 point landing.

And you're right, that's suppose to be Iron Man getting up to kick ass.
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Anonymous Coward, 29 Apr 2015 @ 6:46pm

Re: Re: 3-point landing or standing up?
Even if that was true, the style of the Radix body suit looks like it was lifted from various 90's era Anime films and comics.
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k-h, 30 Apr 2015 @ 12:19am

Sir Knight?
So wait a bit, armoured knights never existed in the middle ages?

So stupid.
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Anonymous Coward, 30 Apr 2015 @ 4:56am

Re:
When I was reading in the Michelene years (1978–1982) of Iron Man there was at least one full diagram the armor's workings a year.

Prior art on this one is ridiculously easy to come by. As for the three point stance I just laugh.
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Just Another Anonymous Troll, 30 Apr 2015 @ 6:20am

Re: Don't panic! It'll go nowhere.
No, he's reporting on the newsworthy case of someone abusing/misunderstanding copyright and not making any merit judgements.
But you're willfully ignorant of this fact because it doesn't push the agenda of your employers, isn't that right OOTB?
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Anonymous Coward, 30 Apr 2015 @ 10:41am

Re: Lawyers.
But if the lawyer pointed out that there is no way they'd win, then there is no ongoing billable hours for the lawyer. To be paid or not to be paid? That is the question!
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psiu, 30 Apr 2015 @ 12:29pm

Re: :)
I've seen some mention of your work before (likely here? Popehat?) and honestly never would have thought that.

Intelligent discourse and agreement that the system is being grossly misused, if not broken is a pretty similar trait, to me. Your disagreements are probably a lot closer to agreement than it seems.

Would be interesting to see a Techdirt interview or (friendly) debate on some of the current topics with you. [And others with a similar "close but not quite" set of viewpoints]
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tqk (profile), 30 Apr 2015 @ 12:54pm

Re: Re: Lawyers.
Now that I think about it, this's SOP for ambulance chasers. Lawyer takes the case on a contingency basis with nothing up front. If they get anything from their threat, he takes X%. If the threatened refuses and chooses to fight it, they withdraw the claim and fold. "Oopsie. Next!" Fighting back is expensive and time consuming even if you're right, so many will pay/settle just to make it go away.

The Cosa Nostra calls it a shakedown. We call it extortion. Lawyers call it business as usual. Imaginary Property; what a racket.
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John Fenderson (profile), 30 Apr 2015 @ 12:56pm

Re: Re: :)
He's been here for years now and has commented on things many times! Not only that, but while Mike & Marc do not agree on many things, they are not mortal enemies or anything.

In my opinion, Marc is a reasonable and thoughtful person who makes valuable comments. Even when he's wrong. ;)
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John Fenderson (profile), 30 Apr 2015 @ 12:58pm

Re: Re: Seriously.....?
It was very cliche'd then. It was a solid comic book cliche when I read them as a kid several centuries ago.
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John Fenderson (profile), 30 Apr 2015 @ 1:01pm

Re: Re: Lawyers.
I think that's only the case with bad lawyers. A good lawyer has plenty of legitimate opportunities to rack up the billable hours: exploring other ways to accomplish what the client wants (or as close to it as possible), educating the client about what the legal landscape is, etc.
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tqk (profile), 30 Apr 2015 @ 1:28pm

Re: Re: Re: Lawyers.
My bad. I should have qualified "ambulance chasers." I never mean to suggest there are no good lawyers; far from it. Some of my favorite people (ie. EFF) are lawyers mostly. There used to be a good one on Slashdot who called himself NYCountyLawyer (or something like that), though I've not bothered with /. in a while. Of course, there's Popehat as well who does admirable work.

I wish those ones could get the rest disbarred (or jailed), but that'd be like trying to count all the grains of sand on a beach.
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John85851 (profile), 5 May 2015 @ 2:46pm

Can you say "marketing"?
Or let's look at this another way:

If these guys were artists at Marvel Comics, then it's probably safe to assume they knew some rough history about the characters. Even if they didn't know the exact details, the editors would fill them in about which armor Iron Man wore and for what mission.

Then something happened and they're no longer at Marvel Comics.

Then "Iron Man 3", "The Avengers", and "Avengers: Age of Ultron" come out and they all make tons of money.

Yet who has ever heard of Radix? Why haven't any producers come to these guys to give them $200 million to make a movie?

Conclusion: these guys need some marketing and it's less expensive to file a lawsuit against Disney/ Marvel than it is to buy some billboards advertising their comic.
Sure, the lawsuit will be squashed before opening arguments, but look at how we're all giving publicity to Radix.
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