Tony Stark vs Ant-Man: Battle Over Advertising Using Iron Man’s Likeness Without Consent

Marvel’s Ant-Man by Nick Spencer is giant size fun that packs the strength of a comic 100 times it size.

Scott Lang takes on his greatest challenge as Ant-Man: starting a security business. Ant-Man had to face bankers to get a loan, followed by a Nazi Atomic Robot from World War II that turned its victims to gold: the Midasbot.

Actually, the Robot was the easiest challenge Ant-Man had to face in the story. Securing a loan for his business, not so much.

After successfully securing a loan from a private investor, Ant-Man launched his advertising campaign with a roadside billboard that included Iron Man giving a thumbs-up with the quote, “I’d hire him.”

No amount of Pym Particles can shrink the big issue Scott Lang created for himself: Ant-Man did not get Tony Stark’s permission to use Iron Man’s likeness to market Ant-Man’s new business. We actually see Tony Stark tell a lawyer, “Sue.”

Tony Stark’s lawyers have multiple options to sue Ant-Man. The options include suing in California, or Florida, or in Federal Court on a Federal Question, or in Federal Court on Diversity Jurisdiction.  The likely choice would be a hybrid.

California Dreaming

There is a very strong argument that Ant-Man violated California’s prohibition on using someone’s likeness without their consent, even though Ant-Man is in Miami.

California’s “long arm statute” states that a California Court “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal Code Civ Proc § 410.10.

Is a single roadside sign in Miami enough to establish personal jurisdiction over Ant-Man in California? One of Tony Stark’s lawyers would argue yes, because Ant-Man 1) knew Iron Man was in California and 2) had interviewed for a job with Tony Stark in San Francisco. This should be enough evidence to show Ant-Man purposefully available himself to the laws of California by using Iron Man’s likeness in Florida (at least according to Tony Stark’s lawyers). This is a very difficult argument to make successfully based on one sign in Miami.

Going Back to Miami

The better argument would be to sue in Federal Court either on diversity or Federal Question. Tony Stark has an excellent Federal Question: Copyright violation by using the image of Iron Man.

If in Federal Court based on copyright violation, a Federal Judge in Florida could hear the Florida state false advertising claims based on supplemental jurisdiction, because the claim is related to the copyright violation for using the image of Iron Man on the billboard, thus making it the same case or controversy under 28 USCS § 1367.

Tony Stark’s lawyers would likely prefer using California law prohibiting the use of someone’s likeness in advertising over Florida’s false advertising laws. This would require either suing in California, or going to Federal Court based on Diversity Jurisdiction, or suing over the copyright claims in Federal Court with the California claims being pendent to the copyright jurisdiction.

If a Federal Court were applying California law, or if California somehow had personal jurisdiction over Ant-Man, the relevant California law states:

(a)  Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

Cal Civ Code § 3344(a).

Tony Stark could prove that 1) Iron Man’s likeness was used by Ant-Man in marketing Ant-Man’s services and 2) Ant-Man did not get Tony Stark’s consent to use Iron Man’s likeness. What is interesting would be the actual damages, which might not meet dollar requirement to be in excess of $75,000 for diversity jurisdiction to get Stark into Federal Court in Florida.

Tony Stark could at least seek the statutory amount of $750 from Scott Lang. Given Stark’s wealth and the cost of litigation that would be simple damages for the sake of revenge on a financially bankrupt Scott Lang, who is living in a toy house to save money.

If Stark could prove his actual damages for appearing on one roadside sign in Miami, the amount of damages could go up. If Stark could prove Ant-Man’s profits were attributable to the use of Iron Man’s likeness, that amount would be in addition to the damages award, minus Ant-Man’s deductible expenses.

Could Stark claim his damages to be in excess of $75,000 for Diversity Jurisdiction? Unknown, but an Extremis powered lawyer from a Big Law Firm would sure try.

One option is to focus primarily on the violation of Tony Stark’s copyright in the Iron Man armor being used on the billboard. As Federal Courts have exclusive jurisdiction over copyright claims, a Federal Court could allow the California claims as being part of the same case. (See, Fed. Treasury Enter. Sojuzplodoimport v Spirits Int’l N.V. (2010, CA2 NY) 623 F3d 61, 96 USPQ2d 1906 for exclusive jurisdiction). In Astor–Honor, Inc. v Grosset & Dunlap, Inc., it was held a Federal court had the power to hear a complaint over the alleged conspiracy to infringe on a copyright, despite there being no diversity, because it was joined with copyright claims that had a common nucleus of facts. As such, claims can be joined if “one would ordinarily be expected to try them all in one judicial proceeding.” Astor–Honor, Inc. v Grosset & Dunlap, Inc. (1971, CA2 NY) 441 F2d 627, 170 USPQ 65, 14 FR Serv 2d 1502.

In a case with copyright and contract claims where the contract claim did not meet the amount in controversy to provide diversity jurisdiction, the Federal Court could hear the contract claims because the copyright claims gave the court jurisdiction based on a Federal Question (copyright) and pendent jurisdiction over the contract claim under 28 USCS § 1338(a). Powell v Green Hill Publishers, Inc. (1989, ND Ill) 719 F Supp 743, 14 USPQ2d 1760.

Based on the above, there is a strong chance the Invincible Iron Man would be able to sue the Astonishing Ant-Man in Federal Court, in Florida, with both copyright claims and seeking relief over using Iron Man’s likeness in advertising without Tony Stark’s permission.

There are many unanswered questions regarding Ant-Man’s new business. Did he incorporate in Florida? If so, what kind of corporate entity? What kind of business insurance does a security firm require? Does Ant-Man have the required OSHA postings for his single employee? How does the Affordable Care Act impact Ant-Man’s new business? Does Ant-Man get a tax break for hiring an ex-con?

Regardless of those answers, keep up the great work Nick Spencer.