How Not To Sue Marvel Comics And/Or Mark Millar for $1.2 Billion

How Not To Sue Marvel Comics And/Or Mark Millar for $1.2 Billion

Posted by February 19, 2019 Comment

You may remember an article we ran a couple of years ago about a certain Michael Bennett of Georgia who was convinced that Mark Millar had stolen ideas from Bennett’s self-published novel, The Owl, which he had sent to Marvel’s submissions department and then sold them back to Marvel for use in their movies.

This, of course never happened. Mark Millar was not an employee of Marvel, he worked in Coatbridge, Scotland rather than New York, and also became a rival of Marvel working for Fox Studios and then with Millarworld, now sold to Netflix. He wasn’t working with Marvel when most of the movies he mentions were developed.

Nevertheless, in August 2017 he served Marvel and Mark Millar at Marvel’s offices, though they pointed out that Mark Millar wasn’t in the building or even an employee of Marvel. Which is also why Marvel objected to the Affidavit of Service that Marvel had accepted service on behalf of Millar.

And then went to court.

The court allegations claiming damages of over a billion dollars came thick and fast, three hundred pages of them, with screencaps taken of Marvel movies, Kingsman and Kick-Ass that were meant to be in some way similar to scenes in The Owl. But weren’t.

There are pages and pages of this stuff.

Here are just a few. From Ant-Man

Winter Soldier

Civil War

Kingsman

 

Kick-Ass

He had a narrative to sell, you see. He knew just how all this had happened. And it was all Mark Millar’s fault.

His enacted revenge on a Superman screenplay rejection from DC that was pitched in 2008, not 2007, was to write Kick-Ass featuring Batman analogues…which was published in comics in early 2008?

I don’t think you could make that case. And no, DC Legal did not say they thought Mark Millar had stolen from Bennett. We go on.

By this point, Mark Millar had left Marvel and was working for their competition Fox Studios, of course. But don’t you want to hear more about Mark Millar’s evil symbolism?

We even got his C&D letter to Joe Quesada.

 

Marvel’s responses were covered in legalese but you could read the frustration seeping through. As complaints were made, then amended repeatedly when objections were raised, but never in any way that seemed to change the complaints. Such as the (non)similarity of the wounds that The Owl receives at some point in his book, and those that Captain America receives.

what Plaintiff has never addressed – for this or any other of the dozens of alleged similarities – is that even if the wounds were similar (and they are not), they are not protectable by copyright.

Plaintiff also revisits the issue of the grappling gun… a grappling gun is a common tool for action heroes, as it allows for the scaling of and swinging between buildings. Batman, Lara Croft, James Bond, Van Helsing, and Luke Skywalker have each used a grappling gun in films released well prior to Plaintiff’s books. That a grappling gun is used by two different characters within Captain America: Winter Soldier (one a hero, and one a villain) and by a character in The Avengers underscores the commonality of the tool. Again, Owl’s use of a grappling gun is not a protectable element of Plaintiff’s works, and Plaintiff makes no credible argument that it is – nor could he.

And there were more besides.

Plaintiff continues to make unsubstantiated and ludicrously offensive claims against Marvel. For example, Plaintiff maintains that Marvel threatened his life via a scene in Captain America: Winter Soldier  and hacked his phone to gather ideas. Yet he unsurprisingly provides no evidence to support his accusations. A character wearing blue jeans and a green shirt and crashing into a Dodge truck in an action sequence cannot reasonably be construed to symbolize a threat on Plaintiff’s life, and Plaintiff’s accusations of phone hacking appear to be alleged against Mark Millar, who is not, and has never been, a Marvel employee.

As anyone who knows Mark Millar could attest, couldn’t hack his own computer when he already has all his own passwords. But yes, in one of the complaints from Bennett, there it is.

Many times after activating my phone it would give me a YouTube sign in alert. I believe this was Mark Millar using his illegal phone hack to gain access to my YouTube account. I discovered that in a 3 year period someone had put about 35 “Null” comments on most of my videos. The “Null” Comments came from my own account and I know I didn’t put them there so I complained to Mark Millar and only Mark Millar. I accused him of putting the “Null” comments on my videos on his Facebook page and his Twitter account.

Right after I complained to Mark Millar all the “Null” comments were taken down all at once. I believe this is proof that it was Mark Millar that put the “Null” comments on my videos by using his illegal phone hack. I believe this was Mark Millar’s way of taunting me and his way of celebrating nullifying my character Owl by stealing all his original attributes and being paid to distribute them among his characters and Marvel’s characters.

And the means as to how Millar might have come by his book,

I believe Mark Millar by using his illegal phone hack on my phone found out about the Owl Knight’s Quickening book and must have purchased it or had someone purchase it for him. I have enclosed a printout from Amazon Digital Services of my book sales. There is one book sale that has a GB in front of it which might stand for Great Britain and Mark Millar is from the UK.

And in his complaints…even extending to the movie Spy. Somehow.

Enough was enough for Marvel’s lawyers.

‘Plaintiff has wasted enough of the Court’s time and resources, and forced Marvel Entertainment, LLC (“Marvel”) to incur tens of thousands of dollars in legal fees to refute his baseless arguments. Despite numerous opportunities to submit a valid claim, Plaintiff’s latest scattershot pleading fails to identify any protectable elements copied by Marvel. For the reasons set forth below, and those in the Memorandum of Law in Support of Marvel’s Motion to Dismiss, with Prejudice, Plaintiff’s Second Amended Complaint… Marvel requests that the Court dismiss Plaintiff’s lawsuit with prejudice.’

Oh and we turned up as well.

Finally, Plaintiff’s assertion that Marvel was somehow connected to an article published by Bleeding Cool News in 2016 is absurd.

In fact, the author of the article states his source as Plaintiff’s public statements on Twitter, Facebook, and YouTube. See https://www.bleedingcool.com/2016/05/11/michael-bennett-vs-mark-millar-a-fascinating-conspiracy-theory/

Thanks for the plug, Marvel. Maybe the first time. I would like to state that, no, neither Marvel, nor Mark Millar, nor anyone associated with either of them has led me to write about this case, then or now.

On July 17th last year, the District Court Northern District of Georgia/Atlanta finally dismissed his complaint and his amended complaint but allowed Bennett to amend it yet further as he was representing himself.

He was instructed to amend it so it would make it clear which of the parties he was alleging were responsible for what, separate into different claims for relief. He was told that the comparisons he had made between his work and that from Marvel were insufficient and needed to be amended too. The court told him;

Furthermore, the undersigned explained that Plaintiffs extensive “comparisons” of the purportedly infringing Marvel works were insufficient to establish a valid copyright infringement claim that demonstrated that the works at issue were “substantially similar” such that “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”

On August the 2nd, he was ready to resubmit, on the 20th Marvel filed to have that dismissed as well. The court found the resubmission unintelligible and noted that rather than make new arguments, he resubmitted the old ones with additional ones to boot.

It appears that Plaintiff again claims that Defendants, in creating the productions Captain America: Winter Soldier, Ant-Man, Captain America: Civil War, Guardians of the Galaxy, Avengers: Ag” of Ultron, and Agents of S.H.I.E.L.D., copied Plaintiffs self-published Owl books. In his Second Amended Complaint, Plaintiff added additional Marvel works that he alleges Defendant copied from his Owl books: Captain America: The First Avenger; The Avengers; Iron Man 3; Spider-Man: Homecoming; Thor: Ragnarok; Black Panther; Avengers: Infinity War; and Ant-Man and the Wasp.

And the nature of those comparisons was unchanged

For example, like his First Amended Complaint, Plaintiff compares his character Owl’s mechanized wings with Marvel’s character Falcon’s mechanized wings, and states that his character “owl’s use of a parachute is like Falcon’s use of a parachute.’ Just as the Court explained inregarding the purported similarities its July 17 ,2018 Order, these blanket assertions between Plaintiff s Ow books and the Marvel productions appear to be broad ideas found in most action movies and comic books and scene a faire, rather than copyright infringement. More specifically, Plaintifls numerous attempts to compare his Owl books with the Marvel productions, while wide-ranging, are generalized rather than “substantially similar” or “strikingly similar.”

Furthermore, as previously explained by the Court, plaintiffs Second Amended complaint is more of a diary-like comparison than a complaint… Rather than using short and plain statements as required by the Federal Rules, the third amended complaint included an 85-paragraph fact section spanning 31 pages, much of it written in narrative, diary-like form.

As a result, the court granted Marvel the motion to dismiss this Second Amended Complaint, with prejudice, the case being closed on January 11th.

Dismissal with prejudice means that Barrett is barred from bringing an action on the same claim and is a final judgment. Except–it is open to appeal. So guess what’s happening?

A few days ago, Bennett has registered his case with the Court of Appeal in Georgia, citing both Marvel Entertainment and Mark Millar. He is, if nothing else, persistent. The brief is due on the 25th of March. We’ll keep an eye.

His Owl: The Quickening book can be bought on Amazon Kindle.  But if he really wants a hit on his hand, why not adapt this legal suit as a movie? I’d buy a ticket…

 

About Rich Johnston

Chief writer and founder of Bleeding Cool. Father of two. Comic book clairvoyant. Political cartoonist.

(Last Updated February 23, 2019 8:36 am )

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