While the Caped Crusader drives around in his Batmobile protecting Gotham from its fringe, copyright law protects the Batmobile from infringers—this, according to the Ninth Circuit in DC Comics v. Towle. The Batmobile is more than just Batman’s ride; it is its own comic-book character worthy of copyright protection. In reaching this conclusion, the Ninth Circuit articulated a “three-part test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection.” Read below for an analysis of this test in action (POW!).
Here are the facts: DC Comics, the plaintiff, claimed to own a copyright in the Batman comic-book series, which included the Batmobile. It entered into two licensing agreements that allowed for the creation of the 1966 Batman television show and the 1989 motion picture Batman (the one with Michael Keaton). Versions—importantly, different versions—of the Batmobile appeared in both the TV show and the movie. Both versions, however, maintained a “bat-like physical appearance” and were “equipped with futuristic technology and crime-fighting weaponry.”
As part of his business at Gotham Garage, the defendant, Mark Towle, created replicas of the Batmobile as it appeared in the TV show and movie. Towle admitted that he designed his vehicles to replicate the Batmobile. Indeed, he advertised the Batmobile look-a-likes for sale via his website: batmobilereplicas.com.
DC Comics sued. After the District Court granted summary judgment in favor of DC Comics’ copyright infringement claim, and a final stipulation was entered, Towle appealed to the Ninth Circuit.
The Ninth Circuit’s analysis (worth reading in its entirety because of the humorous Batman references) largely focused on the issue of whether the Batmobile is copyrightable. It began with a discussion of precedents supporting the proposition that characters, including comic book characters, are afforded copyright protection, despite their omission from the Copyright Act. These precedents, it said, gave rise to a three-part test:
- The character must generally have physical as well as conceptual qualities;
- The character must be sufficiently delineated to be recognizable as the same character where it appears; and
- The character must be especially distinctive and contain some unique elements of expression.
In short, under this framework, the Ninth Circuit concluded that the Batmobile was a character deserving of copyright protection. First, the court found that the Batmobile—having appeared graphically in comic books and in three-dimension on TV and motion pictures—had physical and conceptual qualities (as opposed to being a mere literary character). Second, the court found that the Batmobile’s core features—bat-like appearance, high-tech weaponry and crime-fighting purpose—were recognizable traits traceable through DC Comics’ original comic books through the ’66 TV show and the ’89 movie. This portion of the analysis was derived from precedent considering the copyrights of characters like James Bond and Godzilla. Third, and finally, the court said the Batmobile is unique; it is more than just a stock character.
Holding that the Batmobile was copyright-protected, the court turned to the issue of infringement. Towle’s principal argument was that DC Comics lacked standing to sue because, if he had indeed infringed, such infringement related to the TV show and movie, not DC Comics’ comic books. The court was unpersuaded. Instead, DC Comics, as the original copyright owner of the Batmobile, owned exclusive rights in all work underlying any licensed derivative work (the TV show and movie). It necessarily followed then, as the Ninth Circuit had held in a 1994 case, that an original copyright owner has standing to sue for any infringement of work underlying authorized derivative work.
In light of this conclusion, the court ultimately determined that Towle’s replicas unequivocally infringed upon DC Comics’ copyright in the Batmobile. Now, Batman can continue fighting crime, knowing that no one can steal his ride (at least figuratively, without paying . . . ).