On Thursday, February 5, 2014, the Ninth Circuit heard oral arguments in the matter of Towle v. DC Comics, No. 13-5548.  DC Comics filed suit against Mark Towle, who sells replicas of the 1966 and 1989 Batmobiles through his “Gotham Garage” business.  The Central District of California previously granted summary judgment in favor of DC Comics, holding, inter alia, that Towle infringed on DC Comic’s copyright interests in the Batmobile as it appeared in the Batman comic books, as well as DC Comic’s rights in the 1966 Batmobile from the television series starring Adam West and the 1989 Batmobile from the film starring Michael Keaton.

Although the three-judge panel – Melloy (8th Cir.), Bybee, and Ikuta – asked few questions, they seemed skeptical that DC Comics could prevent Towle from selling cars without the Batman decals based upon a theory of copyright infringement.  It was undisputed, however, that Towle’s use of the “Batman” symbol decals on the replica cars infringed upon DC Comics’ rights.

In addressing the copyright claim, the Ninth Circuit and the parties agreed that the easier approach would be to resolve the dispute regarding whether DC Comics retained merchandising rights in connection in the Batmobiles depicted in the 1960’s television series and the 1989 film.  If so, those rights would likely extend to merchandising rights in the Batmobile, and therefore allow DC Comics to enjoin unlicensed third-parties from creating unauthorized Batmobile replicas.

The more interesting question, however, is whether the Batmobile merits copyright protection as a fictional character.  As Judge Ikuta pointed out, the Ninth Circuit’s decision in Halicki Films, LLC v. Sanderson Sales and Marketing, 547 F.3d 12133 (9th Cir. 2008) implies that inanimate objects, like cars, may qualify for copyright protection as a fictional character under certain circumstances.

In response, counsel for Towle argued that Towle is not selling a character, he is selling a functional vehicle, which is not subject to copyright protection.  He argued that it is impossible to separate the functional aspects of Towle’s replica cars from the allegedly copyrightable elements of the Batmobile.  In response to whether the Batmobile is a copyrightable character, he argued that the Batmobile has been portrayed inconsistently in almost every work in which it appears, and therefore does not merit copyright protection as a character.

Counsel for DC Comics countered by arguing that recognizable artistic designs, such as the “bat fins” on the Batmobile, are subject to copyright protection.  He also argued that the Batmobile has maintained consistent characteristics over the years; to the extent it has been modified, it is no different than different actors portraying James Bond – another fictional character that Courts have determined merits copyright protection.