On 7 March 2016, DC Comics (‘DC’) ended a long term battle with car designer Mark Towle (‘Towle’) in its fight to secure copyright protection of the Batmobile.
The fight began in May 2011 when DC filed action against Towle alleging infringements of its trade mark, copyright and unfair competition claims amongst other things arising from Towle’s manufacture and sale of replicas of the Batmobile.
Towle said he made replicas based on those Batmobiles which featured in the Batman 1966 TV show and 1989 motion picture and argued:
On the first point it was held that the Batmobile was in fact a “character” which was entitled to copyright protection. The Court reasoned that the Batmobile “is known by one consistent name that identifies it as Batman’s personal vehicle” and has consistent physical features such as its colour and “bat-like motifs” and “high-tech gadgets and weaponry”[i].
While not every comic book, TV or motion picture character is entitled to copyright protection, such protection has been considered available by US courts “for characters that are especially distinctive”[ii] and which carry and maintain identifiable character traits and attributes.
The Court in this case held the Batmobile contains unique elements of expression and is not merely a stock character. It further held that the bat-like appearance of the Batmobile and its character trait of having more power than an ordinary car with flame shooting tubes has been a consistent theme throughout the comic books, TV series and motion picture. For that reason it was determined that the Batmobile is an especially distinctive character which is entitled to copyright protection.
On the second point, DC argued it was still the owner of copyright in the Batmobile as it appeared in both the 1966 TV series and the 1989 motion picture as DC had expressly reserved ownership of the merchandising rights in the characters which it licensed to the production companies.
The court then considered whether Towle’s replicas of the Batmobile as it appeared in the 1966 and 1989 productions infringed DC’s copyright.
Towle argued that his replicas of the Batmobile as it appeared in the 1966 and 1989 productions did not infringe on DC’s underlying work because those versions of the Batmobile looked substantially different from any of the depictions of the Batmobile in the comic books. The US court rejected this argument on the basis that the Batmobile was a copyrightable character which did not need to have a consistent appearance in every context so long as the character has distinct character traits and attributes. Further it was held that 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 DC’s underlying work, Towle’s replicas copied some aspects of DC’s underlying works.
Towle then filed a writ of certiorari asking the US Supreme Court to consider whether a court may judicially create a subject of copyright that was specifically and expressly excluded from the statute (i.e. automobiles), but the US Supreme Court denied the writ and confirmed the United States Court of Appeals Ninth Circuit’s opinion that the Batmobile was a character entitled to copyright protection.
As Batman once said, “In our well-ordered society, protection of private property is essential”[iii]. Another win for DC.
Read the original case here – http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/23/13-55484.pdf
[i] DC Comics v Mark Towle, United States Court of Appeals for the Ninth Circuit, 23 Sep 2015.
[ii] Halicki, 547 F.3d at 1224.
[iii] Greenway Productions television broadcast “Batman: The Penguin Goes Straight”, March 23, 1966.
[iv] Above n 1, Appendix A.
[v] Above n 1, Appendix B.