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DC Comics drove out of the 9th Circuit Court of Appeals on Wednesday with a big win that affirms it is entitled to copyright protection on the “automotive character” known as the Batmobile.
The Warner Bros. subsidiary was challenged by Mark Towle, a Temecula, California, mechanic who in 2011 was sued for selling replicas of Batmobiles from the 1960s TV show and 1989 film. Towle, who sold his replicas for $90,000 apiece, argued that the Batmobile is merely functional — a “useful article,” legal-speak for a utilitarian rather than artistic object.
But in an opinion today, the appellate judges decide that the Batmobile is a sufficiently distinctive element of the old TV show and Tim Burton film and that DC Comics did not transfer its underlying rights to the character when it licensed rights to produce derivative works.
“As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential,’ ” states the opinion. “Here, we conclude that the Batmobile character is the property of DC, and Towle infringed upon DC’s property rights when he produced unauthorized derivative works of the Batmobile as it appeared in the 1966 television show and the 1989 motion picture.”
Sandra Ikuta wrote the opinion for the 9th Circuit with nods to the legal history of other characters in entertainment including James Bond and Godzilla, and most especially, the auto character of “Eleanor” from the film Gone in 60 Seconds, which came up in a 2008 decision and spelled out the test that a character may be protectable if it has distinctive character traits and attributes.
The judge writes that the Batmobile, as appearing in entertainment, has “physical as well as conceptual qualities,” and is “sufficiently delineated” to be recognizable as the same character 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,” writes Ikuta. “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.”
Towle argued that the Batmobile 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.
However, Ikuta finds that the auto character has been consistent enough. “No matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains,” she writes.
Whether or not they agree with the outcome, Batman fans will love the opinion (read here) which shows off a deep knowledge of the Caped Crusader’s favorite ride.
For instance, Ikuta notes, “Equally important, the Batmobile always contains the most up-to-date weaponry and technology. At various points in the comic book, the Batmobile contains a ‘hot-line phone … directly to Commissioner Gordon’s office’ maintained within the dashboard compartment, a ‘special alarm’ that foils the Joker’s attempt to steal the Batmobile, and even a complete ‘mobile crime lab’ within the vehicle.”
The 9th Circuit also looks at DC Comics’ copyright infringement claim against Towle, who further challenged whether the comic book house had standing since it didn’t own the old TV show nor the later film. The argument, though, is considered “irrelevant” because even if the mechanic’s replica Batmobiles were indirect copies of DC’s character, the plaintiff “is entitled to sue for infringement of its underlying work.”
DC is represented by Roger Zissu at Fross Zelnick and J. Andrew Coombs. Towle is represented by Edwin McPherson at McPherson Rane and Larry Zerner.
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