Copyright Protects the Batmobile Better Than Even Batman Can!

Mark Towle built and sold unauthorized replicas of the Batmobile as it appeared in the 1966 Batman TV show and in the 1989 BATMAN movie.  DC Comics publishes and owns the copyright to the Batman comic books.  DC Comics sued Towle for copyright infringement.  Towle argued that the Batmobile was not subject to copyright protection, but even if it was, DC Comics did not own the copyrights to the Batmobile as it appeared in the 1966 TV show and the 1989 movie. 

The district court ruled that the Batmobile was a character entitled to copyright protection, that DC owned the copyright in the Batmobile as it appeared in the 1966 TV show and the 1989 movie and that Towle infringed DC’s copyright.  The district court granted DC’s motion for summary judgment on the copyright infringement claim.  I blogged about the district court’s decision in Batmobile Not Excluded From Copyright Protection As a Matter of Law, Rules District Court. The Ninth Circuit affirmed the district court’s copyright decision.

Is the Batmobile Entitled to Copyright Protection?

Copyright protection extends to both original works as a whole and sufficiently distinctive elements contained within the work. 

Although comic book characters are not listed in the Copyright Act, we have long held that such characters are afforded copyright protection.  A comic book character has physical as well as conceptual qualities and is more likely to contain some unique elements of expression than a purely literary character.  We subsequently held that characters in a television series or a motion picture may also be entitled to copyright protection.

(Opinion pdf pages 11 – 12).

Not all comic book, television or movie characters are entitled to copyright protection, though.

Copyright protection is available only for characters that are especially distinctive. To meet this standard, a character must be sufficiently delineated and display consistent, widely identifiable traits.  A masked magician dressed in standard magician garb whose role is limited to performing and revealing the magic tricks, for example, is not an especially distinct character differing from an ordinary magician in a manner that warrants copyright protection. Further, characters that have been lightly sketched and lack descriptions may not merit copyright protection.

(Opinion pdf page 12.)

The Ninth Circuit articulated a three-part test for determining whether a character in a comic book, television program or movie is entitled to copyright protection.

First, the character must generally have physical as well as conceptual qualities. Second, the character must be sufficiently delineated to be recognizable as the same character whenever it appears.  Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.  Third, the character must be especially distinctive and contain some unique elements of expression.  It cannot be a stock character such as a magician in standard magician garb.  Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard.

(Opinion pdf page 15). 

The Ninth Circuit determined that the Batmobile meets all of these requirements.  The Batmobile possesses both physical and conceptual qualities, having appeared in both 2-D comic book form and 3-D screen form.  The Batmobile is also sufficiently delineated to be recognizable whenever it appears. 

In addition to its status as a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime, 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. 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.

(Opinion pdf page 16).

The Batmobile is especially distinctive and contains unique elements of expression. 

In addition to its status as Batman’s loyal bat-themed sidekick complete with the character traits and physical characteristics described above, the Batmobile also has its unique and highly recognizable name. It is not merely a stock character.

(Opinion pdf page 18.) 

Yes, Robin, the Batmobile qualifies for copyright protection.

Does DC Own a Copyright Interest in the 1966 and 1989 Productions?

Both the 1966 and 1989 productions resulted from licenses given by the copyright owner.  Towle essentially argued that DC did not own a copyright interest in the works created by the licensees.  The Ninth Circuit disagreed.

The author of an underlying work is entitled to sue a third party who makes an unauthorized copy of an authorized derivative work to the extent that the material copied derived from the underlying work.

(Opinion pdf page 22).

We conclude that DC owns a copyright interest in the Batmobile character, as it is depicted in the 1966 and 1989 productions. There is no dispute that DC is the original creator of the Batmobile character. While DC licensed rights to produce derivative works of this character in the 1965 ABC Agreement and the 1979 BPI Agreement, 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. Accordingly, it is 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.

(Opinion pdf pages 22-23).

The Ninth Circuit did not go to the next step of applying the two-part substantial similarity test to determine whether Towle copied constituent elements of DC’s work that are original, as Towle admitted to copying.

This case is DC Comics v. Towle, No. 13-55484, Ninth Circuit Court of Appeals.

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