Defendant Appeals Judge’s Decision That Batmobile Is More Than Just A Sweet Ride

In DC Comics v Mark Towle, a copyright infringement suit involving Warner Brothers’ subsidiary DC Comics, the United States Court of Appeals for the Ninth Circuit is set to decide whether the Batmobile is a character protected by copyright. Background DC Comics is the publishing giant behind iconic characters such as Superman, Wonder Woman, and the brooding caped crusader we all know as Batman. In 2011, DC took to task the California-based vendor Mark Towle for copyright infringement, trademark infringement, and unfair competition. Under the business name “Gotham Garage”, Towle fabricated replicas of the Batmobile, Batman’s vehicle of choice. DC was granted summary judgment on the issue of trademark infringement, as the business had used trademarked terms “Gotham” and “Batmobile” in advertisements. The issue of copyright infringement, however, was not so clear cut. The Lower Court’s Decision In certain circumstances, US law grants protection to characters that inhabit an author’s copyrighted works. Copyright has been primarily extended to characters that are present in multiple works and across multiple media platforms. While protectable characters must be very distinctive, their appearance and personality can vary to a degree—so long as they possess “consistent, widely identifiable traits”, they remain under the blanket of copyright. In the lower court decision, the defendant argued that the Batmobile is unprotectable because it is a non-sentient car. While copyright does not apply to useful articles or utilitarian objects, protection does extend to non-functional artistic elements of an automobile. The plaintiff contended that the car’s front grill, fenders, wheels, fins, cockpit and exhaust pipe all fall under this latter category. Towle argued that DC’s logic is problematic, as it ends up encompassing the car as a whole. District Court Judge Ronald Lew accepted DC’s argument, ruling that the Batmobile is protectable as a character “existing in both two- and three-dimensional forms”. The defendant “did not copy the design of a mere car; he copied the Batmobile character”. Lew wrote that the vehicle is not only world-famous, but also readily identifiable by its consistent bat-like motifs. The car was also seen as an “extension of Batman’s own persona” that reinforced the image of its master as a “swift, cunning, strong, and elusive” creature of the night. The Batmobile’s fantastically exaggerated features, such as its sculpted bat-fins and mandibular front, Lew argued, are independently protectable from the car’s utilitarian frame. Additionally, “so-called functional elements” such as torpedo launchers are only useful because they fulfilled Batman’s unique crime-fighting needs. The appeal In his reply brief, the defendant argues that the Batmobile’s artistic elements are inseparable from the automobile’s utility. Towle also contends that the vehicle’s design has varied too greatly to support the notion that it is a “sufficiently delineated” character worthy of copyright protection. DC responds by pointing out that James Bond and Godzilla are both protectable characters despite having undergone considerable changes in appearance and personality. The company also notes that precedent supports a finding of protection. Inanimate objects closely associated with well-known characters, such as Freddy Krueger’s glove and Gone in 60 Seconds’ Ford Mustang “Eleanor”, have been recognized as copyrightable characters onto themselves. Towle counters, stating that “the Batmobile replicas do not portray any of the personality traits purportedly exhibited by the Batmobiles in DC’s comic books. Among other things, a replica does not remain ‘hidden in the Batcave’ until Batman needs it, and the replicas, which are, after all, functional automobiles, are obviously not indestructible.” Summary by: Elena Iosef