October 29, 2015 Practice Points

Ninth Circuit Affirms Existence of Author's Copyright in Batmobile "Character"

The automotive engineer advertised his custom vehicles as "Batmobiles" and admitted to copying the appearance of the vehicles in the 1966 television series and the 1989 motion picture both titled "Batman."

By George H. Carr

A custom automotive garage was affirmed liable for copyright infringement in DC Comics v. Towle, ___ F.3d ___, 2015 WL 5569084 (9th Cir. Sept. 23, 2015), in which the facts were especially one-sided. The automotive engineer advertised his custom vehicles as "Batmobiles" and admitted to copying the appearance of the vehicles in the 1966 television series and the 1989 motion picture both titled "Batman." Accordingly, because licensees of DC Comics had designed the Batmobile's appearance in those derivative works, and under the licenses DC Comics itself did not hold the copyrights in the derivatives, the case turned on the legal question of whether these versions of the Batmobile were also covered by DC's copyrights in the published comic books. The defense argued that the accused vehicles were not covered by any DC Comics copyrights in its comic books, as the relevant versions of the Batmobile had never appeared in the copyrighted comic books, the Batmobile could not be a "character" because it never spoke, and its appearance and features in the comic books constantly changed.

These arguments were rejected. The court first canvassed earlier precedent to set forth a three-part test for determining whether a character in a comic book, television program, or motion picture (as distinguished from other media) is entitled to copyright protection. First, the character must have "physical as well as conceptual qualities" that distinguish it from purely literary characters; second, the character must be "sufficiently delineated" to be recognizable as the same character whenever it appears; and third, the character must be "especially distinctive" and "contain some unique elements of expression."

With regard to the Batmobile, as it appeared in the comic books, the court held that this test was satisfied, despite many changes in appearance and features during its lengthy history. Analogizing these changes to "costume changes that do not alter the Batmobile's innate characteristics, any more than James Bond's change from blue swimming trunks (in Casino Royale) to his classic tuxedo affects his iconic character," the court held that the Batmobile was a protectable character in the Batman comic books.

The court next held that the portrayals of the Batmobile in the 1966 television show and the 1989 motion picture were "derivative works" of the Batmobile character depicted in Batman comic books, and thus were protected by DC's copyright in those comic books. Significantly, the facts that those portrayals on TV and in film were independently copyrightable, were covered by design patents, and did not appear in the copyrighted comic books, did not remove them from the scope of DC's copyrights. The court emphasized that the addition of copyrightable original material was always involved in the creation of derivative works, but that original authors may nonetheless sue for infringement of those derivative works, when the infringement also implicates material covered by the original, underlying copyrights.

This decision was not unexpected, and there was no dissenting opinion; it is an incremental continuation of the Ninth Circuit's existing jurisprudence, which is well settled to protect comic book characters and their three-dimensional realizations. Although the case attracted substantial public attention, because of its well-known subject matter, the most notable legal aspect of the decision is its codification of the three-part test for determining the copyrightability of a visually depicted character.

Keywords: intellectual property, litigation, Batmobile, DC Comics, Ninth Circuit, design patent, copyright infringement

George H. Carr is with Janik L.L.P. in Cleveland, Ohio.


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George H. Carr – October 29, 2015