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This story first appeared in the March 14 issue of The Hollywood Reporter magazine.
On Feb. 5, 2015, the Batmobile will roll into a federal appeals court with James Bond, Godzilla and Freddy Krueger along for the ride.
The 9th Circuit is poised to consider whether Batman’s car is a “character” protectable under copyright law. Arguing against that idea is Mark Towle, a Temecula, Calif., mechanic who in 2011 was sued by Warner Bros.’ DC Comics for selling replicas of Batmobiles from the 1960s TV show and 1989 film. Towle is appealing a ruling that says he is liable for infringement. He argues that the Batmobile is merely functional — a “useful article,” legal-speak for a utilitarian rather than artistic object. If the court sides with Warner Bros., Hollywood studios would win a powerful weapon to stop products that are similar to props like light sabers and ruby slippers.
Licensed merchandise accounts for $150 billion in annual worldwide sales, and studios traditionally have relied on trademark and trade dress laws — which protect against consumer confusion — to police knockoffs. Towle, who sold only a handful of Batmobile replicas at around $90,000 apiece, argues that he never intended to mislead buyers into thinking the cars are associated with DC. But the main appellate drama deals with copyright, which protects against derivatives of original works of authorship.
To bolster its case, DC points to a ruling involving the “Eleanor” Ford Mustang from the 1974 film Gone in 60 Seconds as judicial precedent for an inanimate object being granted copyright protection as a character. DC also cites Krueger’s glove from the Nightmare on Elm Street films as an example where a court protected something closely associated with a well-known character. And DC leans on a 2010 appellate ruling concerning an unlicensed sequel to J.D. Salinger‘s The Catcher in the Rye to support the proposition that characters like fictitious protagonist Holden Caulfield can’t be unfairly exploited in new works.
In response, Towle focuses on the fact that copyright law protects only conceptually separable artistic elements. Rear bat-fins? “These are an aerodynamic aspect of the car,” he says. Mandible-style fenders? “Functional in that they cover the wheels.” Interior monitor? “Drivers use it as a rearview camera.” The Batmobile has changed over time, he adds. The car has not always been black nor aerodynamic, nor has it had such parts as exaggerated front fenders, a jet-engine afterburner and bat-themed gadgets. This could be important to the case because only characters that are “sufficiently delineated” receive copyright protection.
DC counters that James Bond has been protected as a character, “notwithstanding that four different actors have played him over 16 films. Moreover, a court held that Godzilla was sufficiently delineated, notwithstanding the character’s inconsistency of having ‘shifted from evil to good.’ “
But the Batmobile replicas, Towle’s attorneys respond, “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.”
Here’s DC’s full brief. The studio is represented by Roger Zissu at Fross Zelnick and J. Andrew Coombs. Here’s Towle’s full brief. He is represented by Edwin McPherson at McPherson Rane and Larry Zerner.
Some lawyers say a ruling for DC would clarify what studios can own. “We need to get over the idea that cars can’t be characters,” says Aaron Moss, an attorney who has done work for the Godzilla property. “KITT is arguably more delineated than David Hasselhoff‘s character in Knight Rider. If Towle is able to establish that DC has no protectable rights in the Batmobile, you should quit your job and start selling replicas of the General Lee and a decked-out DeLorean time machine.”
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