Holy Copyrightability Batman!

 
 

Attorney, Paradigm Counsel

In the Spring of 2013, this author reported on the then-recent decision, DC Comics v. Towle, 989 F. Supp. 2d 948 (C.D. Cal. Feb. 7, 2013), where Judge Ronald Lew determined that the Batmobile is a comic book character entitled to full copyright protection.1 Just last week, the Ninth Circuit affirmed Judge Lew’s decision, endorsing copyright protection for Batman’s four-wheeled sidekick.

While the Ninth Circuit recognized that copyright protection can extend to “sufficiently distinctive” elements of an original work, like comic book characters, the court cautioned that “[n]ot every comic book, television or motion picture character is entitled to copyright protection.” Distilling wisdom from relevant cases,2 the Ninth Circuit established a three-part test “for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection”:

  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.”

Applying this analytical framework to Gotham City’s mobile crime-fighter, the Ninth Circuit concluded that “the Batmobile is a character that qualifies for copyright protection.” First, the court held that the Batmobile has physical and conceptual qualities because it “has appeared graphically in comic books, and as a three-dimensional car in television series and motions pictures[.]” As such, the Batmobile is “not a mere literary character.” Second, the court determined the Batmobile “is sufficiently delineated to be recognizable as the same character whenever it appears.” The court noted Judge Lew’s findings that the Batmobile has maintained distinct physical qualities. Indeed, since its initial appearance in comic books in 1941, the Batmobile has been a “highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime”; almost always has a “bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems”; is a “crime-fighting car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains”; and “always contains the most up-to-date weaponry and technology.” Third, the court observed that the Batmobile is “especially distinctive,” in that it consistently is referred to as “the Batmobile” and consistently is portrayed as “Batman’s loyal bat-themed sidekick[.]”

In solidifying the Batmobile’s status as a copyrightable character, the Ninth Circuit rejected Towle’s contention that the distinctive car could not qualify for copyright protection because it has not maintained a consistent appearance throughout the years. The court noted that “a consistent appearance is not as significant in our analysis as consistent character traits and attributes,” equating the “changes” in the cars appearance to mere “costume changes that do not alter the Batmobile’s innate characteristics.” The Ninth Circuit also rebuffed Towle’s argument that a jury should decide whether the car’s attributes are sufficiently distinctive for copyright protection, explaining the court is “well-equipped to determine whether, as a matter of law, the[] undisputed facts establish that the Batmobile is an especially distinctive character entitled to copyright protection.”

As this author noted two years ago, although Towle produced replica cars, not entertainment content, this case should be of interest to production companies that create their own versions of well-known elements from other films and television programs and incorporate them into new works. The Ninth Circuit’s decision suggests that even functional elements sometimes may be treated as “characters” for purposes of copyright law.3

 

FOOTNOTES

1 Defendant Mark Towle owns “Gotham Garage,” where he produces replicas of automobiles featured in motion pictures and television program.  DC Comics sued Towle for copyright infringement, among other claims, arising out of Towle’s production of replicas of the Batmobile as it appeared in the 1966 “Batman” television series starring Adam West and in the 1989 “Batman” motion picture starring Michael Keaton.
2 See Halicki Films, LLC v. Sanderson Sales & Mktg.547 F.3d 1213 (9th Cir. 2008) (“Eleanor” – car appearing in original and remake of “Gone in 60 Seconds” – could be entitled to copyright protection), Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) (certain Disney characters entitled to copyright protection), Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., Inc., 216 F.2d 945 (9th Cir. 1954), Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995) (James Bond copyrightable character), Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206 (C.D. Cal. 1998) (Godzilla copyrightable character), and Sapon v. DC Comics, 2002 U.S. Dist. LEXIS 56395 (S.D.N.Y. Mar. 29, 2002) (Batman copyrightable character).
3 The Ninth Circuit also addressed other aspects of Judge Lew’s opinion that are not covered here. This article only discussed the Ninth Circuit’s decision to the extent it addresses the issue of whether the Batmobile qualifies as a character for purposes of copyright law.

Karen Henry is counsel in Davis Wright Tremaine's Los Angeles office.