Batmobile Entitled to Copyright Protection: Ninth Circuit | Practical Law

Batmobile Entitled to Copyright Protection: Ninth Circuit | Practical Law

In DC Comics v. Towle, the US Court of Appeals for the Ninth Circuit held that the Batmobile was a copyrightable character and set out a three-part test for determining whether a character in a comic book, television program or motion picture is entitled to copyright protection.

Batmobile Entitled to Copyright Protection: Ninth Circuit

Practical Law Legal Update 6-619-0109 (Approx. 3 pages)

Batmobile Entitled to Copyright Protection: Ninth Circuit

by Practical Law Intellectual Property & Technology
Published on 29 Sep 2015 • USA (National/Federal)
In DC Comics v. Towle, the US Court of Appeals for the Ninth Circuit held that the Batmobile was a copyrightable character and set out a three-part test for determining whether a character in a comic book, television program or motion picture is entitled to copyright protection.
On September 23, 2015, in DC Comics v. Towle, the US Court of Appeals for the Ninth Circuit affirmed the US District Court for the Central District of California's grant of summary judgment to DC Comics, finding that defendant Mark Towle infringed the company's copyright in the Batmobile by creating and selling Batmobile replicas (No. 13-55484, (9th Cir. Sept. 23, 2015)). Notably, the Ninth Circuit's decision sets out a three-part test for determining whether a character in a comic book, television program or motion picture is entitled to copyright protection.
Since Batman debuted in 1939, the comic book superhero has chauffeured himself around Gotham City in his trusty Batmobile. Although the Batmobile has varied in appearance over the years, two notable versions of the Batmobile appeared in the 1966 Batman television series and the 1989 Batman movie, respectively. Each was produced under license agreement by DC Comics or its predecessor.
Towle produced and sold replicas of both the 1966 and 1989 Batmobile via his website, batmobilereplicas.com. When DC Comics brought suit against Towle for copyright infringement, trademark infringement and unfair competition, Towle claimed that he had not infringed DC's copyright because the 1966 and 1989 versions of the Batmobile were not under copyright protection. Alternatively, Towle argued that DC Comics did not own the copyright in the Batmobile as it appeared in either production. Towle also asserted a laches defense for both the copyright and trademark claims. The parties filed cross motions for partial summary judgment.
The district court held, among other things, that the Batmobile was a character entitled to copyright protection because it:
  • Is known by one consistent name that identifies it as Batman's personal vehicle.
  • Has consistent physical traits that include bat-like motifs, high-tech gadgets and weaponry, and black coloring.
  • Is always portrayed as an extension of, if not sidekick to, Batman.
On appeal, the Ninth Circuit first addressed whether the Batmobile is entitled to copyright protection. In concluding that copyright protection is available for especially distinctive characters, the Court identified a three-part test to determine when a character meets this standard:
  • The character must generally have physical and conceptual qualities.
  • The character must be sufficiently delineated to be recognized as the same character wherever it appears.
  • The character must be especially distinctive and contain some unique elements of expression, as opposed to a stock character.
The Ninth Circuit held that the Batmobile satisfied the test because:
  • The Batmobile has appeared in comic books as well as in television shows and movies, making it more than a mere literary character lacking physical and conceptual qualities.
  • The Batmobile is sufficiently delineated to be recognized wherever it appears. In particular, the Batmobile has distinct physical and conceptual qualities, including:
    • a bat-like appearance;
    • consistent character traits and attributes that identify it as a crime-fighting car;
    • extraordinary maneuvering abilities; and
    • up-to-date, if not futuristic, weaponry and technology.
  • The Batmobile is especially distinctive and contains unique elements of expression as identified in the second-prong. It is unique and highly recognizable by name, making it more than a mere stock character.
After concluding that the Batmobile was a character entitled to copyright protection, the Court went on to find that:
  • DC Comics is the owner of the copyright.
  • Towle infringed DC Comics' exclusive copyright right to produce derivative works of the character.
In connection with DC Comics's trademark infringement claim, the Court also held that Towle cannot assert a laches defense because he willfully infringed DC Comics' trademarks.