[co-author: Rebecca Rosen, Law Clerk]
On September 23, 2015, the Ninth Circuit issued an opinion that will cause comic book fans and car aficionados to take notice. In DC Comics v. Mark Towle, the court held that the production and sale of replica Batmobiles violates DC Comics’ copyright. To quote the eloquent Judge Ikuta, “Holy Copyright law, Batman!”
The Batmobile©
The Batmobile made its comic book debut in 1941. Over the past 75 years, the vehicle’s appearance has gone through various iterations, but it remains recognizable and distinct. The Batmobile stands apart from other vehicles due to its incorporation of futuristic technology, bat motif, jet black color and role as the Dark Knight’s crime fighting car.
The Vigilante Goes to Court
In May 2011, DC brought a claim against Mark Towle for the unlicensed production and sale of Batmobile replicas. While Towle’s cars don’t look like carbon copies of the Batmobile as seen in the comic book, the 1966 television series or the 1989 film, his replicas rely heavily on bat imagery, the black color and even the name “Batmobile.” Towle conceded that he was trying to imitate the Batmobile, but he argued that DC didn’t own the copyright to the Batmobile from the television show or the film. In the alternative, he argued that the Batmobile was not protected by copyright.
To the Bat-Analysis!
To address the case, the Ninth Circuit needed to answer two questions: (A) does DC own the copyright to the Batmobile from the television show or the film? and (B) is the Batmobile protected by copyright?
DC entered into agreements that specifically retained its copyright over all Batman merchandise, which would include replicas of the Batmobile. In 1965, DC’s predecessor National Periodical Publications, Inc. (National Periodical) entered into a licensing agreement to create the Batman television series. It provided the American Broadcasting Company (ABC) with the rights to create the show, but reserved its rights over Batman merchandise. In 1979, DC entered into another licensing agreement, this time to create a Batman motion picture with Batman Productions, Inc. (BPI). Again, DC reserved its rights over Batman merchandise. BPI later subleased the agreement to Warner Brothers, eventually resulting in the 1989 movie BATMAN. Both the television show and the film incorporated the Batmobile, which—according to their respective agreements—remained the intellectual property of DC.
After a straightforward analysis of DC’s ownership, the case careened into murkier precincts.
B. Is the Batmobile Protected by Copyright as a “Character”?
But is the Batmobile entitled to copyright protection as a “character” in an audiovisual work? To determine the answer, the court articulated a three prong test: (1) the character has physical as well as conceptual qualities, (2) the character must be “sufficiently delineated” such that it is recognizable as that character and, (3) the character needs to be “especially distinctive” and “contain some unique elements of expression.”
First, the Batmobile has taken on a physical appearance, as evidence by its 2D and 3D representations in comic books, television shows and movies. Second, the Batmobile is recognizable on its own, whether or not Batman is at the wheel. The bat motif, jet black color, and futuristic technology make it instantly recognizable to readers and audiences, even if the exact iteration of those features changes. Third, the Batmobile’s iconic name makes it “especially distinctive” to readers and audiences, making it more than “merely a stock character.”
After providing this analysis, the court ruled in favor of DC comics, bringing Towle’s actions to a screeching halt.
Yet the Court did not need to go so far as to find an inanimate automobile to be a “character” under copyright law. The courts have long found that certain design elements of useful objects can be protected by copyright if the features are conceptually separable from the useful objects themselves. In fact, the District Court here ruled on this issue, finding that the Batmobile was protectable as a sculptural work under the U.S. Copyright Act.
While R2-D2 from Star Wars is surely a character, embodying the independent action and personality the term “character” normally denotes, is the ring from Lord of the Rings a “character” under the Ninth’s Circuit’s analysis? What about the sword Excalibur? The Ninth Circuit decision answers one question and raises many others.
