The Batmobile Is A Character Entitled to Copyright Protection

The Batmobile is a character and therefore entitled to copyright protection, at least according to the 9th Circuit Court of Appeals. Judge Sandra Ikuta quoted the famous movie in affirming a ruling against a manufacturer of replica Batmobiles. “As Batman so sagely told Robin,” she recited, “in our well-ordered society, protection of private property is essential.”

Defendant Mark Towle, owner of Gotham Garage, sells replica Batmobiles based on the 1966 television series and 1989 movie. In 2011, DC Comics, creator of the Batman character, sued Towle for copyright infringement. A district court judge ruled in favor of the well-known comic book publisher.

On appeal, Towle’s lawyers argued that automobiles are not subject to copyright protection because they are not explicitly listed in the statute.  And even if they were, his lawyers contended, DC Comics did not own the copyright in the specific Batmobile versions as they appeared in either the 1966 or 1989 production. The Batmobile has taken on many different forms over the years and the allegedly infringing replica looked substantially different than any particular depiction of it in the comic books.

First, the court disagreed that the Batmobile could not be copyrighted, ultimately considering it a character capable of receiving copyright protection rather than a mere car. In doing so, they relied on 9th Circuit precedent, as well as a three-part test derived from those cases: (1) the character must generally have “physical as well as conceptual qualities; (2) the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears; and (3) the character must be “especially distinctive” and “contain some unique elements of expression.”  The Batmobile passed every prong of this test, with its unique and recognizable “bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems.” There was a “consistent theme” throughout the comic books, series, and movie, and for that reason, the Batmobile was entitled to copyright protection.

On the issue of whether DC actually owned a copyright interest in the Batmobile as it appeared in the 1966 and 1989 productions, the court found for DC because it is the original creator of the character, and maintains an exclusive right to “authorize others to prepare derivative works based on their copyrighted works,” a right upon with Towle infringed.

This polarizing decision evokes the classic debate amongst intellectual property scholars and legal professionals: how far should this country extend its copyright laws? Are we effectively incentivizing artists and creators or rather, stifling innovation? While the answers to these questions remain unclear, this case certainly recognizes a strong protection in certain characters and designs that have attained notable fame in popular culture. Moving forward, it appears as though rights holders have a new theory of copyright protection upon which they can rely, especially when seeking to protect intellectual property across different consumer platforms. Not only is one able to protect a design that has “readily identifiable and distinguishable traits,” but one can also effectively enjoin someone from creating any replicas of that design, no matter how flattering the imitation may be.

 

Find the opinion here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/23/13-55484.pdf

By: Cara Adams, ’17

 

USC Gould School of Law
©2017 USC Intellectual Property and Technology Law Clinic