January 02, 2013 8:31am PT by Eriq Gardner
Warner Bros. Vs. Custom-Built Batmobiles: The Legal Battle Continues
Later this month, the original Batmobile will be up for auction. The car, designed and built by George Barris for the 1960s ABC series Batman, is expected to fetch millions of dollars. The Batmobile is not only famous and worth a lot, but also on the verge of revving up some legal noise.
At the same time that the original automobile gets auctioned off, Warner Bros. is pushing a challenging lawsuit against a California resident named Mark Towle, who operates Gotham Garage, which specializes in customizing replicas of automobiles featured in various films and TV shows. Towle has sold two replicas of the Barris-designed automobile -- one Batmobile sold for $90,000 and the other for $80,000. He has also sold a replica of another version of the Batmobile from the 1989 Batman film.
For selling these cars, Towle is now defending a nearly two-year-old lawsuit that he has violated copyright and trademarks owned by Warner subsidiary DC Comics. The case is provocative. Last week, both sides submitted motions for partial summary judgment. The plaintiff attempts to score a win by arguing that copyright protection extends to the overall look and feel of the Batmobile and that Towle has violated its exclusive rights of reproduction and distribution.
But Towle has refused to back down, and in court papers, wonders what might come about if DC Comics is able to prevail.
"This is a very important case that has far-reaching implications," says Towle's motion. "While it is true that this case is ostensibly about the Batmobile, which some may find to be trivial, the fact is that the issues that will be decided will have a significant impact on automobile makers and manufacturers."
Batman first appeared as a comic book superhero in 1939. His famous gadget-laden ride was introduced to comic book fans in 1941. Since then, the car has undergone many transformations. When it came time for Barris to create a car for the 1960s TV show, he used a 1955 Lincoln Futura concept model as his base.
In legal papers submitted to the court, Jay Kogan, DC's vice president and deputy general counsel for intellectual property, says the comic book publisher reserved copyright, trademark and merchandising rights to the Batmobile. He says when Barris was commissioned to create the 1966 Batmobile, it was "based on the evolution of the Batmobile Vehicles over the course of the comics." Additionally, certain specifications were outlined in an agreement between various parties, including Barris and Twentieth Century Fox Television, about what was "required to be included in the construction of the 1966 Batmobile."
But just what exactly is the Batmobile? Is it a car or is it something more?
J. Andrew Coombs, an attorney for the Warner Bros. subsidiary, argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning and that by selling an unauthorized replica, Towle is likely to confuse consumers about whether the cars are DC products are not.
Coombs also presents the Batmobile as being an important element of the Batman franchise -- a character in its own right with a "look and feel" that is protectible by copyright. Coombs writes:
"These are not merely vehicles with customized paint and trimmings; these are interactive, highly advanced automobiles equipped with futuristic gadgetry and aesthetics uncommon to vehicles of their time. The Batmobile Vehicles are never referred to simply as 'cars' but rather always by name -- BATMOBILE. They interact with the Batman and Robin characters and serve as integral parts of the stories being told by the respective comic books, television programs and motion pictures in which they appear."
Towle, represented by attorney Larry Zerner, argues that automobiles aren't copyrightable. According to the defendant's argument:
"It is black letter law that useful articles, such as automobiles, do not qualify as 'sculptural works' and are thus not eligible for copyright protection. However, despite this clear, bright line standard, DC believes that there is an exception to this rule. The exception being that if a different version of the vehicle (not even the same version that Defendant sells) once appeared in a comic book, then the rule does not apply. The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable."
The big question here, as the judge noted last year, is whether the design elements of the Batmobile are "useful" or something more. One can't copyright the basic hood of the car as it has a clear purpose -- for example, to protect people from getting wet when it rains -- but in theory at least, it might be possible to protect a unique pattern on the hood if it has no purpose but merely to look cool. In short, can elements from the Batmobile be physically or conceptually separated from its being as a functional automobile?
The plaintiff argues yes, but Towle disputes this:
"DC may argue that they are not seeking protection for the entire design of the vehicle, only the separable, non-functional, artistic elements. This is a lie. Because when asked which parts of the car it considered to be separable, non-functional and artistic, it did not limit its' answers to one or two design features. Instead, DC listed every visible part of the car from the design of the front grill, to the fenders, to the wheels, to the fins, the cockpit, and the exhaust pipe. DC even claims that the color of the Batmobile is copyrightable."
Towle says such a theory would "completely upend existing copyright law." As his lawyer suggests, a decision to affirm copyright elements of automotive design features could be exploited by the likes of Ford and Honda in the manufacturing and distribution of automobiles. Towle presents other challenges to the plaintiff's position as well, including that the Batmobile wasn't entirely original as it emanated in part from the pre-existing 1955 Lincoln Futura and that there is a lack of evidence that Barris or the 1989 film production designer Anton Furst assigned their rights to DC Comics.
Here are the motions for summary judgment in full: The argument by DC Comics that the Batmobile represents a piece of intellectual property being unfairly exploited and unlawfully distributed. And the argument by Towle that an automobile is an automobile -- and that an entertainment studio doesn't have the ability to stop someone who is customizing replicas.
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