Ensley v. Iron Maiden Holdings Limited et al
RULING AND ORDER granting 22 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 3/31/12. (Glynn, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
IRON MAIDEN HOLDINGS LIMITED;
SONY MUSIC ENTERTAINMENT; EMI
MUSIC, INC.; JOHN DOES 1-10,
Case No. 3:10-CV-1782 (RNC)
RULING AND ORDER
Connecticut artist Randall Ensley brings this lawsuit
against defendants Iron Maiden Holdings Limited, Sony Music
Entertainment, EMI Music, Inc., and ten John Does, alleging
violations of his rights under the Federal Copyright Act of 1976,
17 U.S.C. §§ 101 et seq.
Ensley claims that the CD cover art for
the 2010 Iron Maiden album “The Final Frontier” infringes his
artwork “Final Frontier.”
Each of the defendants to this suit
reproduced or distributed the allegedly infringing work.
Defendants have moved for summary judgment on the ground that no
reasonable juror could find the CD cover art “substantially
similar” to Ensley’s drawing.
I agree and therefore grant the
In 2002, plaintiff created the original artwork “Final
Frontier,” a depiction of two skeletons in spacesuits sitting in
a spaceship’s cockpit.
The astronaut in the foreground stares
straight ahead; his mouth is closed.
The drawing – apparently in
pen and ink – is black-and-white.
Plaintiff used a photograph of
Soviet cosmonauts Yuri Gagarin and Gherman Titov to compose his
In that photo, the cosmonauts sit in a windowed room,
not a spaceship.
Plaintiff posted his work on the internet, and
he has registered it with the United States Copyright Office.
Artist Melvyn Grant designed the cover art for “The Final
Frontier,” an album released in August 2010 by the heavy metal
band Iron Maiden.
The album’s cover art depicts skeletons in
spacesuits sitting in a spaceship’s cockpit and the vantage point
is similar to that of plaintiff’s drawing.
But in the album
cover, the fuselage is in ruin, and Iron Maiden’s mascot “Eddie”
stands above the three astronauts, wielding a glowing object he
appears to have used to break through their helmets and skulls.
Red droplets dot the air and the astronaut in the foreground has
his mouth open as though he is screaming.
The two artworks are
reproduced as Figure 1.2
See RIA Novosti/Science Photo Library, Gagrin and Titov, Vostok
1 Launch, 1961, available at http://www.sciencephoto.com/media/
Plaintiff submits comments made in the wake of the CD release
indicating that Iron Maiden had “directly borrowed,” “partly 
rip[ped] off,” “copied (stolen),” or used as “inspiration” his
illustration. I agree with defendants that these comments are
hearsay. They are out of court statements apparently offered to
prove that ordinary observers recognized the album cover as
appropriated from plaintiff’s drawing. While the comments
literally assert that the later work was in fact appropriated
from plaintiff’s, the commenters may also be understood to assert
that they believe the album cover was appropriated from
plaintiff’s illustration. In that way, they are offered for the
truth of the matter asserted. No exception applies.
Figure 1. (a) Plaintiff Randall Ensley’s “Final Frontier”; (b)
Melvyn Grant’s cover art for Iron Maiden’s “The Final Frontier.”
Summary judgment is granted when there is no genuine dispute
as to any material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
judgment is proper only when “no reasonable trier of fact could
find in favor of the nonmoving party.”
Bank, 870 F.2d 840, 844 (2d Cir. 1989).
Lund's, Inc. v. Chemical
“In the context of
copyright infringement, courts have regularly granted summary
judgment where it is ‘clear’ that the plaintiff cannot make out
the essential elements of the claim.”
Tuff ‘N’ Rumble
Management, Inc. v. Profile Records, Inc., No. 95 Civ. 0246, 1997
WL 158364, at *2 (S.D.N.Y. Apr. 2, 1997) (collecting cases).
To establish copyright infringement, a plaintiff must prove
two elements: “(i) ownership of a valid copyright; and (ii)
unauthorized copying of the copyrighted work.”
Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).
seeking to establish the second element, unauthorized copying,
“must show both that his work was ‘actually copied’ and that the
portion copied amounts to an ‘improper or unlawful
Id. (quoting Castle Rock Entm’t, Inc. v. Carol
Publ’g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998)).
plaintiff establishes that an appropriation was improper or
unlawful by showing that the later work bears a “substantial
similarity” to protected expression in his own work.
Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70
(2d Cir. 1999).
Defendants do not address whether plaintiff’s work was
Instead, they argue that plaintiff cannot
succeed on his infringement claim because, as a matter of law,
the cover art for the album “The Final Frontier” does not bear a
substantial similarity to the protected elements of plaintiff’s
work, “Final Frontier.”
While “questions of non-infringement
have traditionally been reserved for the trier of fact,” Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d
Cir. 2010), it is appropriate for a district court to grant
summary judgment when “no reasonable jury, properly instructed,
could find that the two works are substantially similar,” id.
(quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240
(2d Cir. 1983)).
I agree with defendants that no reasonable jury
could find substantial similarity here.
The usual test for substantial similarity is the “ordinary
observer test,” in which the court asks whether an average lay
observer would recognize the later work as having been
appropriated from the earlier one.
Knitwaves, Inc. v. Lollytogs
Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995).
Circuit has noted that when a work contains both protectible and
unprotectible elements, the analysis should be “more discerning,”
and “we must attempt to extract the unprotectible elements from
our consideration and ask whether the protectible elements,
standing alone, are substantially similar.”
Id. (emphasis in
It is a fundamental principle of copyright law that ideas
themselves are not protected; the law protects only particular
expressions of those ideas.
See 17 U.S.C. § 102(b); Williams v.
Crichton, 84 F.3d 581, 587 (2d Cir. 1996).
The parties agree
that the idea of a skeleton in a spacesuit is not, in itself,
However, this does not mean I should remove the
skeleton astronauts from the picture when deciding whether the
two works are substantially similar.
Courts are not “required to
dissect [the works] into their separate components, and compare
only those elements which are in themselves copyrightable.”
Knitwaves, 71 F.3d at 1003.
Instead, I look at how the artists
have “selected, coordinated, and arranged” the design elements.
See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
I am “principally guided ‘by comparing the contested
design’s “total concept and overall feel” with that of the
allegedly infringed work,’” Peter F. Gaito Architecture, 602 F.3d
at 66 (quoting Tufenkian Import/Export Ventures, Inc. v. Einstein
Moomjy, Inc., 338 F.3d 127, 133 (2d Cir. 2003)), “as instructed
by [my] ‘good eyes and common sense,’” id. (quoting Hamil Am.
Inc. v. GFI, 193 F.3d 92, 102 (2d Cir. 1999)).
The images have several similar design elements.
feature skeletons in spacesuits, seated in the body of a
The spaceships are of similar shape, and the controls
on the side of the spaceships are reminiscent of one another.
Both ships are viewed from approximately the same angle; however,
plaintiff does not benefit from the common vantage point:
copyright protection extends “only to those components of a work
that are original to the author.”
Feist, 499 U.S. at 345.
Plaintiff admits he copied the structural elements from the photo
of the Soviet cosmonauts, and indeed the angle in his artwork
mimics the angle in the photograph.
Therefore, he cannot benefit
from this commonality.
Copyright law does not protect titles, Arnstein v. Porter,
154 F.2d 464, 474 (2d Cir. 1946), and plaintiff gains no direct
advantage from the similarity of “Final Frontier” and “The Final
However, to the extent the titles of the works
contribute to their concept and feel, I consider them as part of
Cf. Shaw v. Lindheim, 919 F.2d 1353, 1362 (9th Cir.
The phrase “final frontier,” in the context of these
works, connects space and death.
The works thus share another
common idea: using the phrase “final frontier” to analogize space
However, viewed in totality, the expressions of the two
central ideas – skeletons in spacesuits and the connection of
space and death through the phrase “final frontier” – differ
Plaintiff’s work is a realistic black-and-white
ink drawing, whereas Grant’s album cover is a brightly-colored
illustration in a science fiction or fantasy style.
scene is confined to the ship, whereas Grant’s is set in front of
a star-scape that includes a nearby planet.
See Kerr v. New
Yorker Magazine, Inc., 63 F. Supp. 2d 320 (S.D.N.Y. 1999)
(differentiating between two drawings of a man with a skyline
Mohawk, one made with pen and ink and crosshatching, the other in
color with a fully-realized background).
The skulls in
plaintiff’s drawing are plainly human, whereas Grant’s have both
human and non-human elements, most obviously fangs protruding
from their cheekbones.
Plaintiff’s astronauts are isolated,
whereas Grant’s have encountered Eddie, a monstrous creature who
occupies at least as much space in the illustration as the most
Plaintiff’s astronauts appear emotionally
restrained, whereas Grant’s are screaming as Eddie assaults them.
These elements combine to create two vastly divergent
Plaintiff argues that both illustrations invoke a
“total concept and feel of loss and lack of hope.”
I agree that
this phrase – “loss and lack of hope” – applies to both works.
However, the applicability of a common phrase does not establish
that two works have the same concept and feel.
drawing evokes the “loss and lack of hope” a person might
experience as he faces the inevitable, eternal isolation of his
It is a cold, quiet feeling.
Grant’s drawing, on the
other hand, evokes the “loss and lack of hope” a person might
experience as he faces imminent death at the hands of a
grotesquely violent monster.
It is a desperate, panicked
And while plaintiff’s drawing invites us to identify
with the astronauts, Grant’s encourages us to revel in Eddie’s
Viewed in their totality, these two illustrations share
several ideas and design elements, but their total concepts and
overall feels are very different.
I therefore conclude that no
reasonable jury, properly instructed, could find that Iron
Maiden’s “The Final Frontier” album cover art is substantially
similar to plaintiff’s “Final Frontier.”
Accordingly, even if
Grant did actually copy plaintiff’s drawing, he and the
defendants have not infringed plaintiff’s copyright.
The motion for summary judgment is hereby granted.
Clerk will enter a judgment dismissing the case.
So ordered this 31st day of March 2012.
Robert N. Chatigny
United States District Judge
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