Holy Copyright Infringement, Batman! by DAVID BAKER atman. The name conjures so many tires, and the ever-important seat belts. The Bam! Ka-Pow! Biff! iconic images. There’s the Caped V version of the Batmobile was replete with In May 2011, DC Comics filed suit Crusader and the Boy Wonder, gadgets such as the Batcomputer and the against Mr. Towle and Gotham Garage in played to campy perfection by Batphone, but the versions that made it into U.S. District Court for the Central District Adam West and Burt Ward in the Tim Burton’s Batman and Batman Returns of California and the case was assigned to B1966 television series. There’s Gotham City films and the Christopher Nolan trilogy of Judge Ronald S.W. Lew. DC Comics v. Towle, and the Bat Signal. There’s Cesar Romero, films Batman( Begins, The Dark Knight, and CV 11-3934 RSWL OPx, 2013 WL 541430 Jack Nicholson, and Heath Ledger, each of The Dark Knight Rises) were more lethal and (C.D. Cal. Feb. 7, 2013). Towle had been whom portrayed the Joker in his unique way. intimidating. operating Gotham Garage as an automobile There’s Wayne Manor and the Bat Cave. Unfortunately for Mr. Towle, DC Comics, workshop, creating and selling vehicle There’s the black cowl, the flowing cape, and Inc., a Warner Bros. subsidiary, owns the modification kits and full-size replicas of the utility belt. There’s Christian Bale and exclusive rights to all things Batman, including the 1966 and 1989 Batmobile. The replicas the entire Dark Knight series. Through it all, the Batmobile designs, and the comic book were made to look just like the originals, and there has always been Batman’s distinctive publisher is very protective of its intellectual included well-recognized trademarks from ride, the Batmobile. property. Historically, DC Comics has the Batman franchise such as the distinctive And, who wouldn’t want to drive the recognized the value of the designs (an bat silhouette. However, the replicas were Batmobile or, at least, a replica of the famed original 1966 Batmobile (Barris built a total not licensed by DC Comics, and in the vehicle? Santa Ana entrepreneur Mark of four) recently sold at auction to a private complaint the company alleged copyright Towle thought the same thing and set out to collector for more than $4,600,000) and has infringement, trademark infringement, and manufacture and sell replicas of the classic allowed only very limited reproductions of the unfair competition. 1966 version and the exotic 1989 version Batmobile. Likewise, DC Comics has been In December of last year, Towle and DC through his company, Gotham Garage. The protective of the Batman name and the logos Comics filed dueling motions for partial problem? He didn’t own the intellectual associated with the fictional crime fighter. summary judgment seeking summary property rights associated with the Batmobile. judgment as to DC Comics’ trademark, copyright, and unfair competition causes of To the Batpoles! action, and on Towle’s laches defense. And, in From its humble beginnings as a plain red March of this year, Judge Lew considered and convertible on the pages of Detective ruled on the motions. Comics No. 27 in May 1939, the Batmobile has been reimagined and In the End, Veracity and Rectitude reengineered in a myriad of ways, but Always Triumph. ever since Batman and Robin responded The core of DC to Commissioner Gordon’s first call for Comics’ argument was help on the 1966 Batman Television that Towle had infringed series, the Batmobile has upon a valid copyright in the always been as recognizable designs of the Batmobiles. DC as the man himself. Comics argued that the 1966 The Batmobile leapt onto and 1989 Batmobile vehicles television screens in 1966 as constituted a protectable a highly modified concept car character in the fictional (designed by George Barris) Batman universe. Towle countered based on a Lincoln Futura, that the elements he had copied were sporting a glossy, jet-black not protectable under the Copyright Act paint job highlighted by because they were functional. Further, Towle “fluorescent cerise” with dual disputed that DC Comics had established Plexiglass canopies, chrome ownership of valid copyrights to the 1966 exhausts sprouting from the and 1989 Batmobiles. rear deck, Mickey Thompson In order to establish copyright 12 Orange County Lawyer infringement, two elements must be proven: determining whether visually depicted Towle never denied that he had copied the (1) ownership of a valid copyright, and (2) characters are subject to copyright protection. Batmobile vehicles, but he did argue that copying protected elements of the original Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1452 the copying of a two-dimensional Batmobile work. Copying is established under the (9th Cir. 1988). character into three-dimensional forms is not “substantial similarity” test by showing that Judge Lew wrestled with copyright infringement. He was wrong. Judge the works in question are “substantially this question and ultimately applied the Lew noted that “copyright in a work protects similar in their protected elements” and “character delineation” test articulated by the against unauthorized copying, not only in that the infringing party had access to the Ninth Circuit in Rice v. Fox Broadcasting the original medium in which the work was copyrighted work. Co., 330 F.3d 1170 (9th Cir. 2003). In Rice, produced, but also in any other medium as Generally, “substantial similarity” is the the Ninth Circuit explained that “characters well.” Id. at *15. Towle’s manufacturing of more difficult element to prove. A court must that are ‘especially distinctive’ or ‘the story an unauthorized three-dimensional copy of first distinguish between the protectable and being told’ receive protection apart from the a two-dimensional comic book character still unprotectable material and then, as established copyrighted work.” Rice, 330 F.3d at 1175. constituted copyright infringement. in Apple v. Microsoft, the court must apply a “Especially distinctive” fictional characters Towle’s argument that the Batmobile is two-part “intrinsic versus extrinsic” test that have received copyright protection are only a car and that the design of a car is not to determine whether the two works are those that have displayed consistent, widely protectable under copyright law also did not substantially similar. Apple v. Microsoft, 35 identifiable traits, such as Godzilla, James hold purchase with Judge Lew. Instead, the F.3d 1435, 1442 (9th Cir. 1994). Bond, and Rocky Balboa. court found that the Batmobile is a “pictoral, On the issue of ownership, Judge Lew graphic, and sculptural work” entitled found that DC Comics had reserved all rights to copyright protection and courts have to the characters and elements depicted in the DC Comics traditionally accorded copyright protection Batman television series and the 1989 Batman to such works incorporated within a useful film through licensing agreements. Further, article when those works can be identified the court found that DC Comics clearly argued that the separately from, and are capable of existing owned copyrights to the original comic book independently of, the utilitarian aspects of series in which the Batmobile originally 1966 and 1989 the useful article. Judge Lew commented that appeared. And, as the copyright holder to Towle “did not copy the design of a mere car; he the Batman comic books, Towle had the Batmobile vehicles copied the Batmobile character.” And, “[t]he exclusive right to prepare derivative works. fact that the unauthorized Batmobile replicas This right extends beyond mere protection constituted a that [d]efendant manufactured—which are against unauthorized copying to include the derivative works—may be ‘useful articles’ is right to assert copyright infringement of the protectable irrelevant. A derivative work can still infringe derivative work. the underlying copyrighted work even if the Judge Lew reasoned that each of the character in the derivative work is not independently entitled Batmobiles at issue was a derivative work to copyright protection.” Id. at *17. of DC Comics’ Batman comic book series fictional Batman In ruling on the motions, the court held and the Batman television series, and that that “all of the features that distinguish Towle had copied those vehicles. Thus, the universe. the Batmobile from any other car—the court held that DC Comics had standing to fantastical elements that feature bat design, sue Towle for copyright infringement. DC Judge Lew found that the Batmobile such as the bat tailfin and the various gadgetry Comics, 2013 WL 541430 at *13. was “sufficiently delineated” to constitute that identify the vehicle as the Batmobile— On the issue of validity, Towle argued that a character entitled to copyright protection are protectable elements.” Id. at *18. Thus, the Batmobile should not be entitled to any because it conveys a set of distinct the Batmobile was subject to copyright copyright protection because it is a functional characteristics. The court reasoned that “[i]t protection, Towle infringed that copyright, vehicle. DC Comics countered, arguing is undeniable that the Batmobile is a world- and DC Comics’ motion was granted. that the Batmobile is entitled to copyright famous conveyance in the Batman franchise, protection because it is a “character” in the exhibiting a series of readily identifiable and Curses! Foiled by the Bat and His Boy fictional Batman universe. distinguishing traits.” DC Comics, 2013 WL Wonder Again! As established in the Superman case, 541430 at *13. The court also found that In marketing his replica vehicles, Towle Warner Bros. Inc. v. American Broadcasting Co. the case is analogous to one which involved had included the words “Batman” and Inc., 720 F.2d 231, 235 (2d Cir. 1983), and the the “Godzilla” character, Toho Co., Ltd. v.