In DC Comics v. Towle, the Ninth Circuit recently upheld the district court’s summary judgment determination that the Batmobile, as it appeared in at least two very different iterations created more than twenty years apart, constitutes a single copyrighted “character.” No joke.
The case involved Towle’s creating and selling Batmobile replicas, specifically the car used in the campy 1960s series starring Adam West as the Caped Crusader and the one used in the 1989 feature film starring Michael Keaton. Both the original vehicles and Towle’s replicas are pictured in the appedices to the Court’s opinion, which I strongly encourage my gentle readers to examine before proceeding further.
The Court commenced its learned discourse by exclaiming, “Holy copyright, Batman!” Following that was a discussion of the copyrightability of characters, citing such precedents as James Bond, Godzilla and Batman himself, all of whom have appeared in various guises over the years. Curiously, nowhere does the Court refer to any particular copyright registration for the Batmobile (or even one any particular comic book issue depicting it, for that matter) despite summarily rejecting Towle’s argument on that point in a footnote.
The Court distilled its discourse on copyright in a character into a tripartite test:
We read these precedents as establishing a three-part test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection. First, the character must generally have “physical as well as conceptual qualities.” Second, the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance. Third, the character must be “especially distinctive” and “contain some unique elements of expression.” It cannot be a stock character such as a magician in standard magician garb. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard. (Citations omitted).
Now let’s briefly examine how the Court determined that the Batmobile satisfies this standard. The Court found that the Batmobile has “physical as well as conceptual qualities” in that the car is always “sufficiently delineated” in that it’s “equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime” and that is “almost always bat-like in appearance.” The Court also noted that “[n]o matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.” The Court further stressed: “Equally important, the Batmobile always contains the most up-to-date weaponry and technology.”
Let’s unpack this for a moment by substituting “Buick” for “Batmobile.” Does anyone really believe the state-of-the art technology in a 1966 Buick even remotely resembles that of a 1989 or 2015 model? And while the Batmobile “almost always” has bat-like features, how much does a 1966 Buick Regal bear any resemblance to its 1989 counterpart other than in its name? Or in copyright speak, assuming there was a registration for the design of the 1966 car, what copyrightable elements (expression) are incorporated into the 1989 version to merit it being considered a derivative work of the prior model? Indeed, do the two cars in question in this case look anything alike other than both being long and black? Moreover, the Court noted that Towle’s replicas did not exactly copy the originals used in the TV show and the film, although he did sell kits and accessories to customize the cars to more closely resemble them.
What the Court is describing sounds more like the “idea” of the Batmobile rather than any particular expression of it. The Court’s justification for copyrightable status seems to fly in the face of idea/expression dichotomy, codified in Section 102(b) of the Copyright Act in that ideas can’t be copyrighted, but only the particular expression of them. And that’s the problem in granting copyright protection to characters, especially those with non-speaking roles.
Plaintiff’s tiff with Towle seems to have been driven by his calling his replicas “Batmobiles” and trading upon that name, including using the domain name, batmobilereplicas.com. That, of course, is the province of the trademark law, not that of copyright, as names, titles and short phrases aren’t copyrightable. DC Comic’s complaint, did, in fact, allege trademark infringement and a cursory review of the PTO’s online database shows no fewer than four live registrations under the “Batmobile” moniker.
But assuming the Joker did not write the opinion, the Ninth Circuit hath now decreed that the Batmobile is a copyrighted character. So as the Riddler would say, riddle me this:
Since the Court did not identify any specific copyright registration, how long does the copyright in the Batmobile last? Assuming we can pin a date on any early version, it would seem that an ancient avatar would eventually fall into the public domain, although original, copyrightable features added to later iterations could not freely be used so long as they remained under copyright — at least following the Sherlock-like logic of Judge Posner’s 2014 opinion in Klinger v Conan Doyle Estate, Ltd. In other words, at some point the 1960s Batmobile will be free for joy rides across the public domain while the 1989 model may not be.
And as I’m assaying the character of the Riddler, I’ll throw one out that my criminal colleague, the Joker, would truly enjoy:
We know from the Supreme Court’s decision in Campbell v. Acuff Rose Music, that parody is a form of fair use. And recent decisions have held that in some circumstances entire characters and scenes as well as entire works of visual art can be copied for fair use purposes, including parody. Since we know that Towle didn’t copy the copyrighted cars completely, what if instead of black, he had painted his replicas pink with purple polka dots and called them Clown Caper Cars instead of Batmobiles? Couldn’t that be construed as a comedic commentary on the serious, macho characteristics of the Caped Crusader and his avenging automobile?
And let’s magnify the mischief by assuming that Towle whispers in his buyer’s ear that she can paint the clown car black once it’s paid for and she drives it off the lot. Wouldn’t that be an application of the first sale doctrine under Section 109(b) in that “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” At least viewed through the lens of the Ninth Circuit’s brand new dancing baby case, a fair use of a work, such as “transforming” it into a protected parody, constitutes a new work that is “lawfully made.” Perhaps a future Special Guest Villain will have better luck if he avails himself of clever legal counsel prior to producing copycat cars.
Finally, if the Batmobile is now a copyrightable character, will Wonder Woman’s bracelets and Thor’s hammer be appearing as characters in cases at a courthouse near you?
Unfortunately, we can’t tune in tomorrow for the solution to these copyright conundrums as they will be riddles for future courts to unravel.