DC Comics v. Mark Towle dba Garage Gotham

The U.S. Court of Appeals for the Ninth Circuit, recognizing that Batman’s personal crime-fighting vehicle, the Batmobile, is not just a cool car, but a character with “physical as well as conceptual qualities,” concluded that it is “sufficiently delineated” to deserve copyright protection. DC Comics v. Mark Towle dba Garage Gotham, Case No. 13-55484 (9th Cir., Sept. 23, 2015) (Ikuta, J.)

Since its inception, the Batmobile has consistently been depicted as a vehicle with “bat-like” external features equipped with futuristic weaponry and technology that is years ahead of anything else on wheels. Even though the precise nature of the Batmobile has changed throughout the sequence of relevant comic books, television series and motion pictures, its status, the court writes, as “a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime” has not.

At issue are two incarnations of the Batmobile. Defendant Mark Towle built and sold replicas of the Batmobile as it appeared in the 1966 TV show Batman, starring Adam West and from the 1989 film BATMAN, starring Michael Keaton. Towle admitted that he is not authorized by DC Comics to make or sell any products bearing DC’s copyright or trademarks, but denies infringement arguing that the Batmobile as it appeared in the 1966 show and the 1989 movie were not subject to copyright protection. The 9th Circuit disagreed.

Citing to its 2008 Halicki decision, the 9th Circuit explained that copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, like comic book characters, contained within the work. For characters to meet this standard, it must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Indeed, the persistence of these traits and attributes are key to determining whether the character qualifies for copyright protection. To determine whether the Batmobile has obtained such status, the 9th Circuit applied a three-part test: the character must have “physical as well as conceptual qualities”; the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears, although it need not have a consistent appearance; and the character must be “especially distinctive” and “contain some unique elements of expression,” that is, it cannot be a stock character.

Towle argues that the Batmobile did not consistently appear with its signature sleek “bat-like” features, having been sometimes depicted as a heavily armored tank or a batmissile. The 9th Circuit disagreed, reasoning that these “costume changes” did not alter the Batmobile’s innate characteristics. The court also disagreed that the jury should decide whether the Batmobile displayed unique elements of expression and consistent, widely identifiable traits because neither party disputed the relevant facts regarding the Batmobile. As a matter of law, the undisputed facts establish that the Batmobile is an “especially distinctive” character entitled to copyright protection.

Towle also challenged DC Comic’s standing to bring its copyright suit, arguing that DC Comics does not own any copyright interest in the 1966 and 1989 derivative depictions of the Batmobile. Again, the 9th Circuit disagreed: “if a third party copies a derivative work without authorization, it infringes the original copyright owner’s copyright in the underlying work to the extent the unauthorized copy of the derivative work also copies the underlying work.” This rule applies regardless of whether the defendant copied directly from the underlying work, or indirectly via the derivative work, as Towle did here.

There seems to be no question, in the starry eyes of the 9th Circuit panel, that the Batmobile and incarnations of the Batman’s ride enjoys copyright protection—whether depicted as a tank, a missile or, perhaps, as Christopher Nolan’s reimagined Batmobile, the “Tumbler”—as long as these depictions “promote its character as Batman’s crime-fighting super car that can adapt to new situations as may be necessary to help Batman vanquish Gotham City’s most notorious evildoers.”