The Batmobile is a Character...

Holy copyright law, Batman!

In DC Comics v. Mark Towle, a recent decision of the Ninth Circuit Court of Appeal, the Court ruled in favour of DC Comics, holding that the Batmobile – the fictional supercar of fictional superhero Batman – is a character entitled to copyright protection. The decision of the three-judge panel was written, with appropriate comic-book flourish, by the Honourable Sandra S. Ikuta.

In 2011, DC brought a claim against Mark Towle, who built and sold replicas of the Batmobile as it appeared in the 1966 television show Batman (starring Adam West) and the 1989 motion picture BATMAN (directed by Tim Burton). The district court ruled in favour of DC. Mr. Towle appealed.

In her decision, Judge Ikuta reviewed the 80-year history of the Batmobile and noted that, while it has varied in appearance over the years, the Batmobile’s name and key characteristics as Batman’s personal crime fighting vehicle have remained consistent. It has, she noted, consistently been depicted in comics as possessing “bat-like external features, ready to leap into action to assist Batman in his fight against Gotham’s most dangerous villains, and equipped with futuristic weaponry and technology that is ‘years ahead of anything else on wheels’.”

While the car, as it appeared in both the 1966 television show and the 1989 film, was not a direct copy of any iterations of the Batmobile as it appeared in the comic books, it maintained a bat-like physical appearance and was equipped with state-of-the-art crime fighting weaponry and futuristic technology. In both the television show and the film, DC had licensed the rights to the Batman literary property.

In his defence, Mr. Towle argued that the Batmobile as it appeared in the television show and the film was not subject to copyright protection and, alternatively, that DC did not own the copyright in the Batmobile as it appeared in either production.

In considering whether the Batmobile was entitled to copyright protection, Judge Ikuta noted 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. Although comic book characters are not mentioned specifically in the U.S. Copyright Act, courts have long held that such characters are afforded copyright protection and that characters in a television series or a motion picture may also be entitled to copyright protection.

Judge Ikuta cautioned that not every comic book, television, or motion picture character is entitled to copyright protection, and that copyright protection is available only “for characters that are especially distinctive.” To meet this standard, the character must be “sufficiently delineated” and display “consistent, widely identifiable traits.”

Notably, the Ninth Circuit has previously held that an automotive character can be copyrightable. In Halicki Films LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1224 (9th Cir. 2008), the Court found that “Eleanor,” a car that appeared in both the original 1971 and 2000 remake of the motion picture Gone in 60 Seconds, was entitled to copyright protection as a character.

According to the US cases canvassed by Judge Ikuta, a character may be protectable if it has distinctive character traits and attributes, even if the character does not maintain the same visual appearance in every context. The presence of other distinctive qualities, visual or not, can diminish or even negate the need for a consistent visual appearance.

Pointing out that district courts have previously found that James Bond, Batman and Godzilla are characters protected by copyright, despite their changes in appearance, Judge Ikuta articulated the following three-part test for determining whether a character in a comic book, television program or motion picture is entitled to copyright protection:

  1. The character must generally have “physical as well as conceptual qualities.”
  2. 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 it need not have a consistent visual appearance.
  3. 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 the standard.

Judge Ikuta found that the Batmobile met all three steps of this test. For example, the Batmobile is “almost always bat-like in appearance, with a bat themed front and back wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.” She also found that this “bat-like appearance has been a consistent theme throughout the comic books, television series, and motion picture, even though the precise nature of the bat-like characteristics have changed from time to time.” The Court concluded that the Batmobile is a character that qualifies for copyright protection.

In response to Mr. Towle’s argument that the Batmobile has at times appeared without its signature sleek “bat-like” features, Judge Ikuta wrote that a consistent appearance is not as significant as consistent character traits and attributes, likening the different iterations of the car to James Bond changing from blue swimming trunks to his classic tuxedo in Casino Royale.

In response to Mr. Towle’s argument that DC did not own any copyright interest in the 1966 and 1989 productions, Judge Ikuta noted that, under the U.S. Copyright Act, the owner of a copyright has a number of exclusive rights, including the right to prepare derivative works and to authorize others to do the same. Therefore, when DC authorizes a third party to prepare a derivative work, DC retains copyright in that derivative work with respect to all of the elements that the derivative creator drew from the underlying work and employed in the derivative work. The creator of the derivative work has a copyright only as to those original aspects of the work that the derivative creator contributed, and only to the extent the derivative creator’s contributions are “more than trivial.” If the material copied was derived from a protected underlying work, this will constitute an infringement of such work regardless of whether the defendant copied directly from the underlying work, or indirectly via the derivative work.

Applying these principles, the court concluded that DC owned a copyright interest in the Batmobile character as it was depicted in both the 1966 and the 1989 productions.

As the copying of the substance of the entire work was admitted, the court did not need to apply its usual two-part “substantial similarity” test to determine whether DC had established copying of the constituent elements of the work that are original.

Consistent with Canadian Copyright Law

The decision in this case is consistent with Canadian copyright law.

While Canadian courts have not considered this exact scenario, a number of decisions dating as far back as the 1950s have considered the extension of copyright protection to specific elements of a work, including three-dimensional derivatives of literary works. For example:

  • In King Features Syndicate, Inc. et al. v. Lechter, [1950] Ex. C.R. 297, the Exchequer Court of Canada considered whether the defendant was infringing copyright by designing wristwatches with “Popeye-like” characters on the face of the watches. The Exchequer Court held that there were many substantial resemblances to the original Popeye comic strip character and, as such, it was a colourable imitation of the features of the plaintiff’s work in which copyright subsisted.
  • In Preston v. 20th Century Fox Canada Limited, et al., [1990] F.C.J. No. 1011, the Federal Court of Canada considered whether Ewok characters in the plaintiff’s script were protected by copyright and, if so, whether that copyright had been infringed by the creators of the Star Wars films. In reviewing the Ewok characters as they appeared in the plaintiff’s script, the Federal Court concluded that the characteristics set out in the script did not delineate the Ewok characters sufficiently distinctly to warrant recognition as characters subject to copyright, noting in part that it was difficult to distinguish the Ewok characters from other characters in the script.
  • In Anne of Green Gables Licensing Authority Inc., et al. v. Avonlea Traditions Inc., [2000] O.J. No. 740, the Ontario Superior Court of Justice considered whether the physical image and personal qualities of the literary character Anne of Green Gables were protected by copyright. After reviewing a number of specific descriptive passages from the literary work, Anne of Green Gables, the Superior Court concluded that it contained a detailed verbal portrait that captured Anne’s physical image and her personal qualities – a portrait of which was held to be protected by copyright.

As such, the reasoning in DC Comics v. Mark Towle is both consistent with, and provides a logical extension of, copyright law in Canada as well.

To quote Judge Ikuta, herself quoting Batman: “In our well-ordered society, protection of private property is essential.”

Well, three Bat-Cheers to that!