I Am Vengeance-Is the Batmobile Copyrightable?

I am vengeance, I am copyrightable, I am the Batmobile.

What do Batman, Godzilla, James Bond and Eleanor (The car from Gone in 60 Seconds) have in common? Apart from being a random motley of characters in highly successful films, they were all part of the pulp fiction-rich opinion given by the 9th Circuit judge Sandra Ikuta.  In an intriguing case for IP enthusiasts and comic book nerds (like yours truly), the 9th Circuit ruled that a car garage owner, Mark Towle, infringed on DC comics’ copyright of the Batmobile when he sold Batmobile replicas that cost more than $90,000 and took over a year to make. When the opinion begins with the quote “Holy Copyright Law Batman,” you know you are in for a fun ride (pun intended!).

Towle ran a business selling replicas of famous cars from television shows and movies, quite prosaically named “Gotham Garage.” In the opinion of the court, DC comics has a copyright over the character of the Batmobile, which Towle infringed upon by producing and selling replica vehicles based on the 1966 and 1989 Batmobile vehicles. The court relied on its jurisprudence from a variety of cases to set up a three-pronged test that would be used to determine whether the Batmobile is entitled to copyright protection. Specifically, the court cited the Halicki case in which Eleanor, the car from Gone in 60 Seconds, was held to be capable of copyright protection as a distinct character. The test requires that the character must first have “physical as well as conceptual qualities.” Second, the character must also be “sufficiently delineated” so people recognize it as the same character across time. And third, the character has to be “especially distinctive.” Of these, the court analyzed the second test in the greatest detail.

The court ruled that the Batmobile is “sufficiently delineated” to be recognizable as the same character whenever it appears. The judge put her geek cap on and wrote, “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.”

Rejecting Towle’s arguments that there have been times where the Batmobile appears without its signature sleek “bat-like” features, Judge Ikuta found that the Caped Crusader’s vehicle of convenience 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.

But clearly the Batman fan in her doesn’t let her stop there. She goes on to make what is arguably the greatest analogy to be seen in a judgment. The Batmobile appearing without its bat-like features is akin to James Bond changing from his swimming trunks to a tuxedo; it did not alter the car’s inherent characteristics.

The highlight of the judgment though, had to be this delectable quote from the Dark Knight himself. “As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential,’” states the opinion.

The decision has serious implications for the entertainment industry. It will allow for all copyright owners seeking protection of their intellectual property across platforms and product lines to do so without fear. In addition, this holding may prevent others from encroaching upon valuable sources of consumer products revenue. Specifically, it might prevent those without a license from selling replicas of famous objects from movies, such as light sabers or the General Lee.

 Larry Zerner, an attorney for Mr. Towle, said his client’s replicas lacked the essence of the Batmobile character. “We didn’t copy the design of the car in the comic book, and we didn’t copy any of the character attributes. It’s just a car,” he said, “These automobiles don’t fight crime.”

A spokesman for Warner Bros., which owns DC, declined to comment. Batman doesn’t speak too much either. He’s too busy out there fighting crime, in his own copyrighted car, the Batmobile.

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