How does a US Court of Appeals judge respond when tasked with determining the legal fate of a beloved comic book super car? “Holy copyright law, Batman!”

In a decision handed down on 23 September, Judge Ikuta of the 9th Circuit held the reproduction and sale of the Batman’s car, the Batmobile, constituted a breach of US copyright law. Responding to the opinion of the court that the Batmobile is a copyrightable “character”,  some IP lawyers suggest the judgment raises more questions than it answers.

The saga of copyright in the Caped Crusader’s crime-fighting automobile began in May 2011 when DC Comics brought a claim against Mark Towle. DC argued that Towle’s unlicensed reproduction and sale of replicas of the Batmobile as it appeared in the 1966 TV show Batman and the 1989 film BATMAN violated its intellectual property rights.

Towle insisted that DC owns copyright in the Dark Knight’s “loyal bat-themed sidekick” as it appeared in the comics but not as it featured in the 1966 and 1989 productions. Alternatively, he argued that the Batmobile is not protected by copyright at all.

Both arguments were rejected by the 9th Circuit.

Upholding an earlier decision (Halicki Films, LLC v. Sanderson Sales & Mktg., (9th Cir. 2008)), the court found that copyright protection may extend not only to an original comic as a whole but equally to its characters as long as they constitute “sufficiently distinctive” elements of the work.

“Sufficient distinctiveness” is made out on fulfilment of three requirements:

  1. The character has “physical as well as conceptual qualities”
  2. The character is “sufficiently delineated” so it can be recognised even if it appears in different guises
  3. The character is “especially distinctive and contains “unique elements of expression”

Responding to the first requirement, the court held that the Batmobile is not merely a literary character because it has appeared graphically in DC’s comics as well as three-dimensionally in the TV show and films.

The second requirement was also satisfied. Despite inconsistencies in the Batmobile’s various incarnations (which include a heavily armoured tank and a Batmissile), the court held that “the Batmobile is almost always bat-like in appearance” and has maintained this appearance since it first graced comic book pages in 1941.

Finally, the court held that the third requirement was fulfilled because in addition to its special traits and characteristics the Batmobile has a “unique and highly recognisable name”.

As for Towle’s submission that DC does not own any copyright interest in the Batmobile as it appeared in the 1966 and 1989 productions, the 9th Circuit dispensed with this by looking to the applicable legal framework on copyright.

It was clear that DC retained copyright over all Batman merchandise according to the licenses it agreed with the companies responsible for the 1966 and 1989 productions. Consequently, DC were entitled to sue Towle for copyright infringement in derivative works because of its copyright in the underlying work.

The case raises a host of questions as to what kinds “characters” warrant protection under US copyright law. One IP team queries whether the 9th Circuit’s findings could afford protection to the ring from Lord of the Rings or perhaps even Excalibur.

Nevertheless, the court defended its decision and pledged its responsibility to stand up to the “villains” of copyright infringement at the end of its judgement:

“As Batman so sagely told Robin, “In our well-ordered society, protection of private property is essential.” Batman: The Penguin Goes Straight, (Greenway Productions television broadcast March 23, 1966).”