The Batmobile Battle: Ninth Circuit’s Three-Part Test Creates New Landscape for Infringement as Supreme Court Denies Cert

The U.S. Supreme Court declined to grant certiorari over a Ninth Circuit decision (Towle v. D.C. Comics)¹ upholding a district court’s findings that Batman’s vehicle, the “Batmobile,” is itself a character subject to copyright protection, that D.C. Comics had not transferred its underlying rights when licensing the works, and that the defendant’s replica cars were infringing derivative works. The eight-member Supreme Court did not comment when declining to hear the case.

The Ninth Circuit’s Decision

The Supreme Court’s decision to deny cert lets stand a significant Ninth Circuit decision from September 2015 affirming the District Court’s summary judgment in DC Comics’ favor on copyright infringement. In that decision, the Ninth Circuit adopted a three-part test “for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection,” a threshold issue on appeal. In finding that the Batmobile met this test, the Ninth Circuit found, based on facts adduced in the district court, that the Batmobile, introduced in the Batman comic book in 1941, having appeared in eight decades of comic books, and in numerous television programs and motion pictures: 1) has “physical as well as conceptual qualities”; 2) “is sufficiently delineated to be recognizable as the same character whenever it appears”; and 3) is “especially distinctive and contains some unique elements of expression.”

Concerning the Batmobile’s physical characteristics, the Ninth Circuit found that “the Batmobile is almost always bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.” The “bat-like appearance has been a consistent theme throughout the comic books, television series, and motion picture, even though the precise nature of the bat-like characteristics have changed from time to time.” The Ninth Circuit found that Batmobile’s character traits were equally consistent. The Batmobile is always a “crime-fighting car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.” And it always contains the most up-to-date weaponry and technology. Accordingly, the Court ruled that it is “especially distinctive” and contains unique elements of expression, even if every Batmobile is not identical. As the Court noted, the changes in Batmobile’s appearance “resemble costume changes that do not alter the Batmobile’s innate characteristics, any more than James Bond’s change from blue swimming trunks (in Casino Royale) to his classic tuxedo affects his iconic character.” Different depictions of the Batmobile “promote its character as Batman’s crime-fighting super car that can adapt to new situations as may be necessary to help Batman vanquish Gotham City’s most notorious evildoers.”

The Court’s thorough discussion of the facts and relevant case law from within the Ninth Circuit and other jurisdictions, led the Court to conclude—based upon its newly announced three part test—that the Batmobile is a character entitled to copyright protection.

The question of whether Towle’s replicas of Batmobiles as they appeared in the 1966 Batman television show, and in the 1989 Batman movie, infringed the copyright in the Batmobile character depended in part upon the Ninth Circuit’s analysis of derivative works.² The court explained that even though the Batmobiles appearing in the 1966 television show and the 1989 movie were authorized derivative works of the Batmobile character, the owner of the copyright in the underlying Batmobile character “retains a copyright in that derivative work with respect to all of the elements that the derivative creator drew from the underlying work and employed in the derivative work.” Accordingly, it was irrelevant that Towle’s replicas were an “indirect copy of the Batmobile character.” As to the differences between the Towle replicas and the underlying Batmobile character, these were not significant to the Ninth Circuit, which found: “Because Towle produced a three-dimensional expression of the entire Batmobile character as it appeared in the 1966 and 1989 productions, and the Batmobile character in each of those productions was derived from the DC’s underlying work, we conclude that Towle’s replicas necessarily copied some aspects of DC’s underlying works.” The Court did not find it necessary to determine that Towle’s replicas infringed the original Batmobile character under the traditional two-part test for copyright infringement (copying and substantial similarity), because Towle admitted copying “the substance of the entire work.” The Ninth Circuit affirmed the District Court’s judgment of copyright infringement.

The Petition for Certiorari

In his petition for certiorari, Towle argued that the Ninth Circuit had created a subject of copyright that was expressly excluded by the Copyright Act. Specifically, he argued that functioning automobiles are “useful articles,” not subject to copyright. Part of this argument was based on his assertion that the two screen versions of the Batmobile had been patented, and it was the patented versions of the automobiles that Towle copied, after the patents expired. He argued that those vehicles were thus not copyrightable.

Towle also argued that the Ninth Circuit had improperly decided that the Batmobile was akin to a character, even though it has no “personality traits” or any “widely-identifiable physical attributes.” He noted the differences in appearance and characteristics between the two screen versions of the vehicles (not to mention the various comic book iterations over the decades), distinguishing them from “Mickey Mouse and Popeye, who always look the same.”

Finally, Towle argued that the Ninth Circuit impermissibly failed to determine substantial similarity, separately from the evidence of direct copying. He argued that the lower court had failed to determine whether Towle had copied any protectable expression in the Batmobiles. These arguments did not persuade the Supreme Court to accept review of the Ninth Circuit decision, which will no doubt be cited frequently in future cases.

Since the Ninth Circuit’s opinion is now final and reflects the law in that Circuit, we may see additional copyright registrations for fictional characters, including inanimate objects, and possibly new cases filed. Those using pre-existing inanimate objects from third party sources that could be considered copyrighted characters may wish to evaluate the risks of such use. We recommend consulting experienced counsel, as this area is complex, and the Ninth Circuit’s approach does not guarantee the same outcome in other cases or jurisdictions. While the protection of such well known characters such as Batman, Batmobile, Superman, and James Bond are well established, the contours of protection will continue to evolve as courts apply existing standards to novel works in the future.

1. 802 F. 3d 1012 (9th Cir. 2015). The District Court granted summary judgment on DC Comic’s copyright infringement and trademark infringement claims, although it found an issue of fact existed on Towle’s laches defense to the copyright claim. The parties entered into a stipulation that permitted the District Court to enter final judgment on the copyright claim against Towle (and certain other claims) and to dismiss with prejudice other claims not subject to the stipulation. The District Court entered final judgment, and Towle appealed the judgment on the copyright infringement claim to the Ninth Circuit.
2. Towle argued that DC Comics had no interest in the copyright in the Batmobiles he copied because the right to create them for use in the television program and motion picture was granted to a third party. The Court found that although a right to create derivative works was granted, DC Comics held the copyright in the underlying original works.