Copyrighting 'Mr. Batmobile'

CHICAGOLAWBULLETIN.COM WEDNESDAY, NOVEMBER 11, 2015

Volume 161, No. 221

Copyrighting ‘Mr. Batmobile’

lease accept as fact that Applying its previously ruled copyright protection BY E. LE O N A R D RUBIN tests to determine whether the does not extend to util- E. Leonard Rubin practices copyright, Batmobile is “sufficiently delineat- itarian articles. If some- trademark and entertainment law in e d ,”displays “consistent, widely thing is purely practical, Chicago with the firm LRubinLaw. He identifiable traits”and contains and has no artistic aspect that is also teaches entertainment law at The some unique elements of expres- P John Marshall Law School and can be “conceptually severable”from its reached at [email protected], sion, so that it is not simply a utilitarian workings, copyright is (312) 476-7690 or www.lrubinlaw.com. stock character such as might ap- not the right legal protection to be pear in many different works, the s o u g h t . court ruled that the Batmobile is It may be patentable if it meets porated changes from the earlier an “especially distinctive”c h a r - the patent law requirements, but TV version, which was also a part acter and therefore, like some the work is not copyrightable. of Towle’s defense; the two car comic book characters, is copy- (Think of a basic thermometer or designs were different. r i g h t a b l e . a bicycle.) DC Comics figured out a way It further ruled that the It is this truth that underlined that it might get around this basic changes in design between the the attempts by Mark Towle to utilitarian truth, and using a very 1966 and 1989 versions were like build and sell replicas of two ver- creative argument, it disagreed. It “costume changes”that might be sions of the Batmobile without ob- contended that its Batmobile is undergone by a character. taining permission from DC really a character used in Batman The court went on to note that Comics, the owner of the Batman stories and thus, like Batman him- the Batmobile’s status as a “h i g h - f r a n c h i s e . self, eligible for copyright protec- ly interactive vehicle, equipped Towle was sued by DC Comics tion. with high-tech gadgets and for copyright infringement be- The 9th U.S. Circuit Court of weaponry used to aid Batman in cause of his activities, and his de- Appeals hears a great deal of fighting crime”has not changed, fense, understandably, was that copyright cases —that is under- even though its appearance has. the Batmobile is a car, a utilitarian standable, since California is with- According to the court, as long object, and thus cannot be copy- in its jurisdiction and California is as the various Batmobile depic- r i g h t e d . an entertainment industry center. tions “promote its character as Towle had built and sold repli- On appeal to the 9th Circuit, B a t m a n ’s crime-fighting super car cas of the Batmobile as it ap- the court ruled that despite what that can adapt to new situations peared in the 1966 television show Towle may have thought, the Bat- as may be necessary to help Bat- “B at m a n”starring Adam West as mobile is indeed a character — man vanquish Gotham City’s well as the somewhat different even though it might also be a car. most notorious evildoers,”t h ey version that appeared in the 1989 It is thus eligible for copyright deserve copyright protection. film “B at m a n”starring Michael protection whether or not some I wonder whether Popeye’s can Keaton. The movie version incor- may believe it is a utilitarian object. of spinach is next.