Ninth Circuit Upholds Copyright Protection for Batmobile
09/28/2015Last week, the Ninth Circuit Court of Appeals waded into comic-book history and took an in-depth look at what makes a protectable “character” for purposes of copyright law. The court sided with DC Comics, the owner of the copyright in comic-book crime-fighter Batman, in a case focusing on the caped crusader’s signature vehicle, the Batmobile.
Batman made his original appearance in comics in 1939, and the Batmobile appeared not long after, in 1941, but this litigation focused heavily on two specific depictions of the car: the one found in the 1966 Batman television series starring Adam West, and the one found in the 1989 Batman film starring Michael Keaton. The show and movie were created by third parties who received licenses from DC Comics.
The defendant in the case, Mark Towle, through his business, “Gotham Garage,” has been building and selling replicas of, and kits that allow fans to retrofit their cars in homage to, the Batmobile. DC sued Towle in 2011 on claims including copyright infringement, trademark infringement, and unfair business practices. Towle conceded that his designs copied the Batmobile as it appeared in the 1966 show and the 1989 film, and that he had no permission from anyone to do so; his primary defense was that the Batmobile as it appeared in the 1966 show and the 1989 film was not subject to copyright protection.
A federal district court in California granted summary judgment for DC Comics. DC Comics v. Towle, 989 F. Supp. 2d 948 (C.D. Cal. 2013). It concluded, among other things, that although DC did not own the copyrights in the 1966 show and 1989 movie (which were created by licensees), it maintained a copyright in the Batmobile as it appeared in the show and movie because it reserved its rights in the characters and owned the merchandising rights for characters depicted in the movie and show. It also noted that there was some confusion in the case law regarding the legal standard to be used in determining whether visually depicted characters are subject to copyright protection, but analyzed the issue and concluded that the Batmobile was protectable as a character. The district court also granted summary judgment to DC on Towle’s proffered affirmative defense of laches in connection with DC’s trademark claim, noting what it characterized as Towle’s bad faith in intentionally copying the Batmobile and intentionally marketing it to associate it with the Batman films and shows.
On appeal, the Ninth Circuit also sided with DC, and took the opportunity to clarify the state of the law on copyright protection for visually depicted characters. In a unanimous opinion authored by Judge Sandra Ikuta, the court tackled the issue of whether DC owned a copyright in the Batmobile as it appeared in the 1966 show and 1989 movie, and if so, whether Towle infringed that copyright. Generally, copyright protects not only a comic book work as a whole, but also “sufficiently distinctive” elements of the work. Courts have noted that, unlike purely literary characters, characters in comic books, television shows, and movies generally have “physical as well as conceptual qualities” and often contain unique elements of expression. That does not mean that every character in a comic book, television show, or movie is protected by copyright, though; the key is that the character must be “especially distinctive,” displaying “consistent, widely identifiable traits.”
The court clarified that a character need not speak or even be sentient to be protectable. In fact, it cited a case involving a movie called Gone in 60 Seconds (originally released in 1971 and remade in 2000), in which the court had previously examined a car as a potentially protected “character” and concluded that the particular car named “Eleanor” in that film might be protectable under copyright. The court also clarified that a character’s distinctive qualities need not all be related to visual appearance, pointing out that in fact, famous characters such as James Bond and Batman himself are protected despite their evolving appearance over the years, because they have consistently retained unique, protectable characteristics.
Thus, the court laid out a three-part test for determining whether a character in a comic book, television show, or movie is entitled to copyright protection. First, the character must generally have “physical as well as conceptual qualities.” Second, it must be “sufficiently delineated” so as to be recognizable as the same character whenever it appears; this doesn’t mean the appearance must be completely identical across works, but it must display consistent, identifiable character traits and attributes. Third, the character must be “especially distinctive” and “contain some unique elements of expression” (as opposed to, say, a “stock character” such as a “magician in standard magician garb”).
Applying this test here, the court concluded that the Batmobile certainly has both physical and conceptual qualities that have remained consistent over time. The court cited the Batmobile’s status as “a highly-interactive vehicle, equipped with high-tech gadgets and weaponry”; its bat-like physical appearance, including elements such as “a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems,” and the fact that this “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”; and the car’s “consistent character traits,” including” sleek and powerful characteristics, “an ability to maneuver that far exceeds that of an ordinary car,” and the fact that it “always contains the most up-to-date weaponry and technology.” As for the third prong of its test, the court concluded that the Batmobile, far from being a mere “stock character,” has a “distinctive” status “as Batman’s loyal bat-themed sidekick” with a “unique and highly recognizable name” and unique expressive elements (the character traits and physical characteristics already described). In sum, the court held that the Batmobile is a character that qualifies for copyright protection.
The court rejected Towle’s argument that the Batmobile has on occasion taken a form—such as a tank or missile—that is quite different than its usual sleek, bat-like appearance. The court opined that that was more analogous to a costume change by James Bond, and in fact was consistent with the Batmobile’s “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 also rejected Towle’s assertion that the issue should be left to a jury, noting that, while the issue of whether a work is subject to copyright protection is a mixed question of fact and law, here, neither party disputed the relevant facts.
The court also had to address the fact that what Towle copied was Batmobile as it appeared in the 1966 show and 1989 movie—which were themselves derivative works of the original comic books, created by authorized third-party licensees. The court clarified that, where a someone “copies a derivative work without authorization, it infringes the original copyright owner’s copyright in the underlying work to the extent the unauthorized copy of the derivative work also copies the underlying work.” Thus, when DC gave those third-party entities a license to produce derivative works (a show and a movie) using the Batman characters, “DC did not transfer its underlying rights to the Batmobile character. DC therefore owns the copyright in the Batmobile character, as expressed in the 1966 and 1989 productions, at least to the extent these productions drew on DC’s underlying work.” So it was “irrelevant that Towle’s replica Batmobiles were an indirect copy of the Batmobile character, because DC is entitled to sue for infringement of its underlying work.” While Towle insisted that his replicas actually looked quite different from any given depiction of the Batmobile in the comic books, the court was not convinced; the exact appearance was not as important as the fact that he copied the 1966 show and 1989 movie versions, which themselves were derivative works, and thus Towle necessarily copied important aspects of the underlying work.
According to at least one report, DC is now pursuing hefty damages as well as destruction of any Batmobiles owned by Gotham Garage. In the larger scheme of copyright law, this decision comes at a time when copyright and trademark owners are struggling to defend their intellectual-property rights against entrepreneurs who market unauthorized derivative works on the internet, often exploiting recognizable brands or works to do so. Unlike many high-profile copyright cases of late, this case did not involve a fair-use defense. But this opinion and its three-part test will likely provide helpful guidance for other parties and courts examining the legal issues that come with paying homage to—and profiting from—an element or character from pop culture.
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