DC Comics v Towle: Is the Batmobile Protected By Copyright?

by Barron Stroud, Jr.

Background

DC Comics is the publisher and copyright owner of books featuring Batman. Batman first appeared in comic books in 1939, and in 1941 the Batmobile was introduced as Batman’s primary mode of transportation. The Batmobile has varied in appearance over the years, but its name and key characteristics as Batman’s high-tech personal crime-fighting vehicle have remained consistent. Since its creation in comic books, the Batmobile has also appeared in numerous television programs and motion pictures, including the 1966 television series, Batman, starring Adam West, and the 1989 motion picture BATMAN, starring Michael Keaton. Defendant Mark Towle produced full-size, operational replicas of the Batmobile as it appeared in both the 1966 television show and the 1989 motion picture, and sold them for approximately $90,000 each to car collectors.

In 2011, DC Comics brought suit for copyright infringement and other grounds. Mr. Towle argued that the 1966 and 1989 versions of the Batmobile were not subject to copyright protection. The district court granted summary judgment to DC Comics. The Ninth Circuit affirmed in DC Comics v Towle, 802 F.3d 1012 (9th Cir. 2015).

Analysis

The central question presented in this case is whether the Batmobile is entitled to copyright protection. Although some early decisions cast doubt on whether literary characters were copyrightable, it is now clear that they can be independently copyrighted in certain circumstances.

Although comic book characters are not listed in the Copyright Act, courts have long held that, as distinguished from purely “literary” characters, comic book characters, which have “physical as well as conceptual qualities”, are copyrightable. See Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978). Characters in a television series or motion picture may also be entitled to copyright protection. See Olson v National Broadcasting Co., 855 F.2d 1446 (9th Cir. 1988). An automotive character may also be copyrightable. See Halicki Films, LLC v Sanderson Sales & Marketing, 547 F.3d 1213 (9th Cir. 2008).

Not every comic book, television, or motion picture character, however, is entitled to copyright protection. Copyright protection is available only “for characters that are especially distinctive.” Halicki, 547 F.3d at 1224. To meet this standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir.2003). Copyright protection can apply for a character even if the character’s appearance changes over time. See Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F.Supp.2d 1206 (C.D. Cal. 1998) (Godzilla characters); Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995) (James Bond characters).

Based on those precedents, the Ninth Circuit established a three-prong test to determine whether a character in a comic book, television program, or motion picture is entitled to copyright protection, as follows:

1. The character must generally have physical, as well as conceptual qualities; 2. The character must be so “sufficiently delineated” to be recognizable as the same character whenever it appears; it must display consistent, identifiable character traits and attributes, although the character’s appearance may change; and 3. The character must be distinctive and contain unique elements of expression; it cannot be a stock character.

In applying this test to the Batmobile, the Ninth Circuit found that each element was met, and that the Batmobile is entitled to copyright protection. Also finding that Towle’s production and sale of the Batmobile replicas infringed on the copyrights, the Ninth Circuit affirmed judgment for DC Comic.

Barron Stroud, Jr. is a Partner and Co-Chair of the Intellectual Property Group at Wong Fleming LLC and can be reached by email at [email protected].