The Batmobile is a Character Protected by Copyright

By Marie-Andrée Weiss

The Ninth Circuit held on 23 September  2015, that the Batmobile, Batman and Robin’s vehicle of choice when rushing to save Gotham City, is entitled to copyright protection. The case is DC Comics v. Mark Towle, 2:11-cv-03934.

Appellant Mark Towle builds and sells replicas of the Batmobile, which was first featured in a Batman comic book in 1941. These comic books are published by Appellee, DC Comics. DC Comics had licensed its rights to ABC for the 1966 Batman television show and to Batman Productions in 1988, which in turn sub-licensed it to Warner Bros. which produced the 1989 Batman movie.

Real life models of the Batmobile were created for the 1966 Batman television show and for the 1989 Batman movie, although both of these versions of the Batmobile were not exactly replicating the Batmobile drawn in the comics. It is the 1966 and the 1989 versions of the Batmobile which Appellant produces and sells.

DC Comics filed a copyright, trademark infringement, and unfair competition suit against Towle in 2011, who claimed in defense that the Batmobile was not protected by copyright. The Central District Court of California held in 2013 that the Batmobile was entitled to copyright protection.

 

Characters are protected by copyright

As the Ninth Circuit court is located in California, Mickey Mouse’s home state, it is not surprising that it had recognized in 1978 that characters are protectable by copyright, holding in Walt Disney Productions v. Air Pirates that Walt Disney characters are protected by copyright, because a comic book character “has physical as well as conceptual qualities [and is] more likely to contain some unique elements of expression.” In Air Pirates, the Ninth Circuit distinguished comic book characters from literary characters, which it had found not to be protectable in 1954. In 1988, the Ninth Circuit recognized that television or motion pictures characters are also protectable by copyright.

However, the Ninth Circuit also held in Halicki Films v. Sanderson Sales & Mktg that only characters that are “especially distinctive” are entitled to copyright protection. In Halicki, the character of Eleanor the car, featured in the Gone in 60 Seconds movies, was found to be protected by copyright, as Eleanor was more a character than a mere automobile because of its “physical as well as conceptual qualities.” So strong were these qualities that it did not even matter that Eleanor was a 1971 Ford Mustang in one of the movies, and a 1967 Shelby GT-500 in another! Others courts have recognized that characters may be protected by copyright, if the character at stake was found to have persistent character traits and attributes. For instance, James Bond never asks for a Bloody Mary, or cringes at the thought of using a lethal weapon.

 

A three-part test to determine whether a particular character is protected by copyright

In order to find out if the Batmobile is a character protected by copyright, the Ninth Circuit established a three-part test to determine if a particular character can be protected by copyright: (1) the character must have “physical as well as conceptual qualities,” (2) must be “sufficiently delineated” so that it will be recognized as being this particular character, and (3) must be “especially distinctive” and “contain some unique elements of expression.”

Applying this test to the Batmobile, the Ninth Circuit found the Batmobile to be protectable by copyright. First, it has “physical as well as conceptual qualities,” as it has appeared graphically in comic books and as a three-dimensional car in the television show and the movie. Secondly, it is “sufficiently delineated” to be recognizable wherever it appears, in comic books or on film. The Batmobile almost always looks like a bat, has bat-wings from its top or its back, features a bat emblem, and has a curved windshield. It is used to fight crime, and can be driven very fast, much more than the current 25MPH limit in New York City. The Batmobile is always equipped with the latest technology: in 1966, it already had a mobile phone! Thirdly, it is especially distinctive and “contains unique elements of expression” and “has [an] unique and highly recognizable name.” The Ninth Circuit concluded that “the Batmobile is a character that qualifies for copyright protection.”

 

Defendant’s copies of the Batmobile

Defendant argued that he had copied the 1966 and the 1989 versions of the Batmobile, but not the comic book Batmobile, and that, therefore, Plaintiff lacked standing, as it does not own the copyright of these two Batman features. But the Ninth Circuit was not convinced, because Defendant had copied derivative works and thus had necessarily infringed the copyright of the underlying work, the Batmobile from the comics, citing Apple Computer Inc. v. Microsoft Corp, a case where the Ninth Circuit held that Apple could claim copyright infringement in both an original graphical user interface and a derivative thereof.

The Ninth Circuit concluded that Plaintiff owns a copyright interest in the 1966 and the 1989 Batmobile characters, and that Defendant had infringed Plaintiff’s copyright in the Batmobile.

To the Batmobile©, Robin!

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