By: H.W. Pfabe | May 05, 2017

I was recently having a conversation with one of my clients, who is a very nice and talented comic book artist and writer. We were discussing different elements that can be protected by Copyright, and I mentioned “scènes à faire.”

 

Coincidentally, just a week later, Marvel brings us our newest installment of “MARVEL at the Law!” with a new court ruling, and another lesson in Intellectual Property Protection.

 

  

WHAT IS A SCÈNE À FAIRE?

 

A scène à faire is a scene or story element which is extremely common to the genre of the story.

 

It may be so common that it is almost obligatory to include it, but it is at least so common that one cannot look at it and identify a single source that it has been copied from.

 

Do you have a movie set on a spaceship? Then there’s a good chance that you have a handsome and roguish captain who isn’t afraid to bend the rules, and he probably has a strict first officer who follows those same rules to the letter. Throw in a space battle skimming between asteroids for good measure. These are scènes à faire.

 

These are not protectable by copyright, since doing so would significantly hinder other creators from having the freedom to tell stories in the same genre. Remember, copyright is meant to protect creative works, but it is also meant to motivate us to create those works in the first place.

 

On the other hand, if you have a talking raccoon who’s obsessed with WMDs, then that is likely protectable by copyright (even if he’s more of a trash panda).


 

 

THE CASE:

 

Horizon Comics Productions, Inc. (“Horizon”) filed a complaint in April of 2016 (stemming from a suit filed in 2013) against Marvel, Disney, Paramount, and other distributors of “Iron Man 3.”

 

(Remember “Iron Man 3?” That’s the 2013 film where Shane Black convinced Marvel to let him make an Iron Man movie, including using all of the scenes and jokes that didn’t quite fit Robert Downey Jr.’s character in 2005’s “Kiss Kiss Bang Bang”. Of course, I say that as someone who immediately stops channel surfing as soon as he comes across either an Iron Man movie or “Kiss Kiss Bang Bang”.)

 

The complaint actually has nothing to do with the movie itself, but rather with the poster for the movie.

 

Horizon alleges that the poster infringes the copyright of an image from Horizon’s 2001 comic book “Radix.”

 

Horizon initially argued that the Iron Man armor infringes the copyright to the armor worn by their characters, however the court viewed the piece of art as a whole, and not only the armor. The allegations here are that the design of the Iron Man armor and the pose of the character on the poster, as well as the general feel of the poster, infringe Horizon’s copyrights.

 

Most recently, Marvel moved to have the case dismissed, which led to the current ruling.

 

 

 THE RULING:

 

The court first looked at the “idea of a highly mechanized suit of armor” (since the suits are not identical) and the “fighting pose” of both of the characters. The court found that both the mechanized armor and the pose are scènes à faire in comic books and related media.

 

There are many similarly armored characters, and the armor was not identical, though Horizon argued that the ankles (yes, ankles) were extremely similar.

 

The pose, whether or not it was original when Radix came out in 2001, has become common in comic books by 2013.

 

Thus, the scènes à faire elements are NOT protectable.

 

The court next looked to the overall feel and expression of the artwork, even going so far as to compare haircuts, the use of blue lighting, and shadows. Here the court found that there IS a similarity of expression.

 

The claims of infringement relative to the body armor and to the pose have been dismissed, but the case will go forward as to the overall expression of the artwork.

 

 

THE TAKEAWAY:

 

While the case may seem silly, it’s not without legal basis. In fact, back in 2002, MIT won a $50 Million government grant to develop new materials for suits for soldiers by using a proposal which, allegedly, copied and modified artwork from the same Horizon comic book. MIT removed the similar artwork after receiving a cease & desist letter from Horizon.

 

So, what is the takeaway? There are two sides:

 

When determining what may be protectable about your creative work, you need to consider both separate elements as well as overall impressions created by the work. Many elements that you may spend a lot of time developing may not be protectable, as they may be scènes à faire for the genre.

 

On the other side of the equation, if you’re drawing inspiration from someone else’s work, changing individual details is not enough. There is no magic number, saying if you change some percentage then you no longer infringe. You have to look at the work as a whole and the impression that it creates.

 

Except for poses.

 

Poses are virtually unprotectable (as Bikram’s Yoga College of India found out in 2015). Besides, we all know that the “fighting pose” is just the end of the “superhero landing”, and Deadpool made it clear that that’s a comic book scène à faire.

 

(Really, that last part was just an excuse to include this clip, so you can watch it over and over)