Appeals Court Says The Batmobile Is A 'Character' Covered By Copyright

from the say-what-now? dept

Thu, Sep 24th 2015 5:34am — Mike Masnick

This has been quite a week for wacky copyright issues. The latest is that the 9th Circuit (which specializes in nutty copyright cases, apparently) has ruled that the very concept of the Batmobile can be covered by copyright and that copyright is held by DC Comics. The issue came about because a guy named Mark Towle has an operation called Garage Gotham, where he would produce "Batmobiles" for people who want their own. DC Comics sued, claiming copyright and trademark infringement. The lower court said this was legit, and the appeals court has now agreed -- saying that the Batmobile itself is effectively its own character and thus it can have a copyright in that "character." As with other copyright cases about the copyright on "characters" you would think that this shouldn't matter, because of the whole "idea/expression" dichotomy that says the copyright only is supposed to apply to the specific expression, rather than the general idea (i.e., you can copyright a story about time travel, but not the idea of time travel).

And yet... for whatever reasons, courts have decided that "characters" can be covered by copyright. And now that takes us to this latest ruling, issued by Judge Sandra Ikuta, who appeared to recognize that it was going to get attention, as it kicks off with the joke that plenty of uncreative journalists might stick in their headlines:

Holy copyright law, Batman! indeed. As the court notes -- and as you're probably aware -- the Batmobile has changed quite a bit over the years, which raises more questions about what any copyright on the Batmobile itself might cover. For his part, Towle said that there couldn't be any copyright on the vehicle (and that the suit was barred by laches -- i.e., DC took too long to sue). Either way, the court says that the Batmobile is a character and that some characters within entertainment deserve copyright protection, as per prior court rulings. And, the court notes that this is not the first time someone has claimed copyright on a car as a character in a movie:

We have previously determined that an automotive character can be copyrightable.... In Halicki, we considered whether “Eleanor,” a car that appeared in both the original 1971 and 2000 remake motion picture Gone in 60 Seconds, could be entitled to copyright protection as a character.... Considering Eleanor’s persistent attributes in both the original and remake of Gone in 60 Seconds, we concluded that Eleanor met some of the key factors necessary to qualify for copyright protection.... We first noted that Eleanor was more like a comic book character than a literary character given Eleanor’s “physical as well as conceptual qualities.” We also stated that Eleanor “displays consistent, widely identifiable traits and is especially distinctive.” (alteration, citation, and internal quotation marks omitted). We gave several examples of these traits. First, we noted that “[i]n both films, the thefts of the other cars go largely as planned, but whenever the main human character tries to steal Eleanor, circumstances invariably become complicated.” Second, we noted that in the original, “the main character says ‘I’m getting tired of stealing this Eleanor car,’” and in the remake “the main character refers to his history with Eleanor.” Despite this evidence of distinctive traits, we were sensitive to the fact that the district court had implied that Eleanor was deserving of copyright protection, but had not directly examined this “fact-intensive issue.” Therefore, we remanded the issue to the district court to decide in the first instance.

And, the court notes, it didn't matter that the car in the two films was totally different: "Halicki put no weight on the fact that Eleanor was a customized yellow 1971 Fastback Ford Mustang in one film, and a silver 1967 Shelby GT-500 in another." It then points to a variety of other cases in which characters have been declared covered by copyright, including James Bond, Godzilla and Batman himself. From these cases, the court creates a "three-part test" for determining if a character deserves 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.

Using that test, not surprisingly, the court finds that the very concept of the Batmobile deserves copyright protection.

First, because the Batmobile has appeared graphically in comic books, and as a three-dimensional car in television series and motion pictures, it has “physical as well as conceptual qualities,” and is thus not a mere literary character....

I recognize that the court is building off of caselaw here, but it's difficult to see where or how this fits under the actual law. It seems like a totally made up standard.

And then we get to the big test: is the Batmobile, even in all its different designs and forms, "recognizable" as a single "character.":

Second, the Batmobile is “sufficiently delineated” to be recognizable as the same character whenever it appears... As the district court determined, the Batmobile has maintained distinct physical and conceptual qualities since its first appearance in the comic books in 1941. In addition to its status as “a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime,” the Batmobile is almost always bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle. 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 Batmobile also has consistent character traits and attributes. No 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. In the comic books, the Batmobile is described as waiting “[l]ike an impatient steed straining at the reins . . . shiver[ing] as its super-charged motor throbs with energy” before it “tears after the fleeing hoodlums” an instant later. Elsewhere, the Batmobile “leaps away and tears up the street like a cyclone,” and at one point “twin jets of flame flash out with thunderclap force, and the miracle car of the dynamic duo literally flies through the air!” Like its comic book counterpart, the Batmobile depicted in both the 1966 television series and the 1989 motion picture possesses “jet engine[s]” and flame-shooting tubes that undoubtedly give the Batmobile far more power than an ordinary car. Furthermore, the Batmobile has an ability to maneuver that far exceeds that of an ordinary car. In the 1966 television series, the Batmobile can perform an “emergency bat turn” via reverse thrust rockets. Likewise, in the 1989 motion picture, the Batmobile can enter “Batmissile” mode, in which the Batmobile sheds “all material outside [the] central fuselage” and reconfigures its “wheels and axles to fit through narrow openings.”

Equally important, the Batmobile always contains the most up-to-date weaponry and technology. At various points in the comic book, the Batmobile contains a “hot-line phone . . . directly to Commissioner Gordon’s office” maintained within the dashboard compartment, a “special alarm” that foils the Joker’s attempt to steal the Batmobile, and even a complete “mobile crime lab” within the vehicle. Likewise, the Batmobile in the 1966 television series possesses a “Bing-Bong warning bell,” a mobile Bat-phone, a “Batscope, complete with [a] TV-like viewing screen on the dash,” and a “Bat-ray.” Similarly, the Batmobile in the 1989 motion picture is equipped with a “pair of forward-facing Browning machine guns,” “spherical bombs,” “chassismounted shinbreakers,” and “side-mounted disc launchers.” Because the Batmobile, as it appears in the comic books as well as in the 1966 television show and 1989 motion picture, displays “consistent, identifiable character traits and attributes,” the second prong of the character analysis is met here.

Yes, "always containing the most up-to-date weaponry and technology" is somehow a character trait of the Batmobile. But that seems... weird. I mean whatever car James Bond gets in every Bond film has a similar trait. Does that mean the Bond cars are also covered by copyright.

And, again, how the hell do you settle this with the idea/expression dichotomy? Copyright is for specific expression and not general ideas, and yet this entire ruling is basically saying the idea of the Batmobile is covered by copyright.

Third, the Batmobile is “especially distinctive” and contains unique elements of expression. In addition to its status as Batman’s loyal bat-themed sidekick complete with the character traits and physical characteristics described above, the Batmobile also has its unique and highly recognizable name. It is not merely a stock character.

In short: give your car a name, and you can convince a court that it is a character deserving separate copyright protections. The court tosses out Towle's defense that because the Batmobile constantly changes in appearance that you can't give the general "Batmobile" copyright power, but the court says (somewhat questionably) that it's no different than the fact that James Bond sometimes changes clothes. Yes, really.

The changes in appearance cited by Towle resemble costume changes that do not alter the Batmobile’s innate characteristics, any more than James Bond’s change from blue swimming trunks (in Casino Royale) to his classic tuxedo affects his iconic character.

Here's the thing: I could pretty much see if the court had decided simply that each of the individual designs of the Batmobile in the TV series and the movie deserved their own copyright for the decorative, non-useful elements of the automobile, and then found that the work infringed on those elements. That seems like a more reasonable argument (if a silly one, as I'll get to in a moment). But that's not what the court is ruling. It's saying specifically that the very idea of the Batmobile is covered by copyright, and thus even if you were to design a Batmobile that met the basic criteria set out above, but which looked nothing like an actual depiction of the Batmobile in the comics, TV or movies, you could still be infringing on the copyright. That seems messed up.

It strikes me as bizarre that the court never even mentions the whole idea/expression dichotomy, which is supposed to be a key part of copyright law.

Now, even if we leave all this aside and say that it's fine for DC to hold such a copyright, there's a separate question: should it be going after this guy? And that seems pretty ridiculous as well. The people buying these replica cars are huge fans of the Batman TV series or movie. The reason they're buying these replica vehicles is to show off that fandom and to freely promote the original work, drawing much more attention to it. Unless DC is magically planning to get into the car licensing business (really?), it's hard to see why it feels the need to step in and shut this down, other than to piss off some Batman superfans (with money to burn). Is that really a wise use of DC's legal resources?

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Filed Under: 9th circuit, batman, batmobile, character, copyright, expression, idea, idea expression dichotomy, mark towle
Companies: dc comics

70 Comments

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Anonymous Coward, 24 Sep 2015 @ 5:45am

The court correct in ruling the way it did. The Batmobile is indeed covered by copyright. You cannot just decided to make duplicate copies and sell them. Just what in the hell did Mark Towle think would happen?

It's one thing to purchase the actual vehicle that was used in the production of the TV series but to deliberately create more duplicates of them and sell them? The courts made the right decision.
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- Anonymous Coward, 24 Sep 2015 @ 6:00am
  
  Re:
  Please note that you copied every word you used, and many phrases in your post. That is how society works, people copy each other, especially when it comes to communication and making statements. Without that copying society would cease to exist.
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 Sep 2015 @ 9:24am
    
    Re: Re:
    wut
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- PaulT (profile), 24 Sep 2015 @ 6:37am
  
  Re:
  "The court correct in ruling the way it did. The Batmobile is indeed covered by copyright"
  
  I don't think that part was necessarily in question. It's the "it's a character and gets extra protection" part that's under discussion for the reasons discussed in the article.
  
  "It's one thing to purchase the actual vehicle that was used in the production of the TV series but to deliberately create more duplicates of them and sell them?"
  
  ...and here's the interesting thing. DC do not currently offer (to the best of my knowledge) an "official" replica car. There is clearly a market for such a car, for which people are willing to pay.
  
  But, we get the same old story. Instead of addressing the demand and offering a product available to buy (or licencing it to someone who will), the copyright holder instead whines to the courts. In the process, screwing over nobody but its own biggest fans (in which category both the people paying for the cars and the guy building them both belong).
  
  "The courts made the right decision"
  
  Yes and no, since it's the way they reached the decision that's problematic. Either way, as ever, nobody wins here except the lawyers. The fans are screwed. Since there's no official competing product, DC don't suddenly get extra income either. The only people coming out on top are the ones with billable hours.
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  - Michael, 24 Sep 2015 @ 8:39am
    
    Re: Re:
    I am actually pretty concerned about the court calling it a character. It seems to open a door that leads down a rather bad road.
    
    If I were to create a chair, and then film that chair and give it a name during the film, have I just created a copyright on a character that now prevents someone from making chairs like mine?
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    - Median Wilfred, 24 Sep 2015 @ 8:42am
      
      Re: Re: Re:
      f I were to create a chair, and then film that chair and give it a name during the film, have I just created a copyright on a character that now prevents someone from making chairs like mine?
      
      Absolutely NOT! Because I did it first, so I own the character of Larry The Chair. Pay my license fee! And copyright is forever, dunce.
      
      Masnicator just hates when chairs enforce ownership of ideas! Especially Larry The Chair(C)(R)(TM)!
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      - Larry The Cable Guy, 24 Sep 2015 @ 8:51am
        
        Re: Re: Re: Re:
        I am sorry to say, you are going to need to hand all of those licensing fees over to me.
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    - BernardoVerda (profile), 24 Sep 2015 @ 8:04pm
      
      Re: Re: Re:
      Only if your chair had some (somewhat) distinguishing characteristics.
      
      For example: if the chair had a crack in the seat, and pinched (certain?) people when they tried to "park" themselves on it... then you might well have a winner in the copyright bonanza.
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      - Klaus, 25 Sep 2015 @ 2:42am
        
        Re: Re: Re: Re:
        This is where Katy Perry went wrong in looking for a Left Shark trademark.
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  - Anonymous Coward, 24 Sep 2015 @ 9:10am
    
    Re: Re:
    My question is - did he ever attempt to get a license to reproduce the vehicle? If he did, and they denied it, and he went ahead and started producing replicas, then I think that the court's ruling, in this case, is mostly correct. I'm not entirely convinced the Batmobile is a "character", but I believe DC had a right to protect their creation to some extent under the law (not being well versed in American law, I don't know if it would have been better protected under TradeMark or copyright law or some other law).
    
    I also think that the concept of the Batmobile has become distinctive enough to warrant it some protection (for the existing designs already in print/film). I see no reason why the garage owner couldn't come up with his own design elements to make it different enough that he could market it in some way (again, without violating trademarks).
    
    The comparison to James Bond's vehicle is not valid, though, as it is simply a stock vehicle that has some hidden gadgets included. But the look is that of a current model year or concept car from Astin Martin (usually). When you mention James Bond's car, you think of hidden machine guns, oil slicks, rocket seats, etc, but generally not a particular design or look (barring those that have a favourite model from a particular movie). But mention the Batmobile, and people immediately picture rear spoilers that look like batwings, a front design that looks like a masked face or something similar, distinctive colouring, etc.
    
    IANAL, YMMV, etc, etc.
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    - Anonymous Coward, 24 Sep 2015 @ 2:19pm
      
      Re: Re: Re:
      I believe DC had a right to protect their creation to some extent under the law (not being well versed in American law, I don't know if it would have been better protected under TradeMark or copyright law or some other law).
      Perhaps DC's right arises under the Statute of Monopolies [1624], 21 Jac. 1, c. 3.
      
      This ”right” you speak of, it does indeed come forth from some statute to be found in our books, yes? Or does it flowereth from the ground, like blades of grass and parsley in pleasant springtime? Like hued rainbows do gasseth from the fart-end of spike-headed ponies?
      [ link to this | view in chronology ]
    - Klaus, 25 Sep 2015 @ 2:53am
      
      Re: Re: Re:
      "But mention the Batmobile, and people immediately picture rear spoilers that look like batwings, a front design that looks like a masked face or something similar, distinctive colouring, etc."
      
      Mention Batmobile to me and I think of at least four - "atomic batteries" Batmobile, "shields" Batmobile, rumbly-tumbly Batmobile, and Kilmer's S&M Batmobile. I'm pretty sure there are others...
      [ link to this | view in chronology ]
    - PaulT (profile), 25 Sep 2015 @ 3:18am
      
      Re: Re: Re:
      " But mention the Batmobile, and people immediately picture rear spoilers that look like batwings, a front design that looks like a masked face or something similar, distinctive colouring, etc."
      
      None of which really apply to the version in Nolan's movies, so by that test even some of the official designs fail. To be honest, it probably depends on which generation you belong to. Older people will picture the Adam West version, other adults will probably picture the Burton or animated series one, teenagers will picture the "tumbler" or another animated/videogame alternative. So, there's arguably numerous "characters" under the same name.
      
      Anyway, my point was that there were other ways to go about this, no matter how "right" they were to sue. This way, nobody gets anything and all DC have done is pay a load of money to lawyers. This *may* put other people off from producing similar merchandise, but if there's no available official alternative then nothing is gained.
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Adam, 24 Sep 2015 @ 6:01am

Nuts!
I own a car that I travel with and do various comic book related events... It's the official comic car of that book and completely sanctioned by the creator... however, it's a flat black matte finish sport-type car and very very regularly is referred to as the bat mobile by people who just don't know any different. Routinely batman-clad cosplayers want to take photos and video with the car... however it's not any clone or otherwise resembles the batmobile. Now I wonder is the likeness too close... argh.
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- Anonymous Coward, 24 Sep 2015 @ 8:03am
  
  Re: Nuts!
  Mr West? Is that you?
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  - Adam (profile), 24 Sep 2015 @ 8:47am
    
    Re: Re: Nuts!
    I am not Mr. West. haha. however many at cons think they are.
    [ link to this | view in chronology ]
Anonymous Coward, 24 Sep 2015 @ 6:05am

Automobiles are characters my friend.
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- Rich, 24 Sep 2015 @ 6:07am
  
  Re:
  Sure, and corporations are people.
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  - Anonymous Coward, 24 Sep 2015 @ 6:12am
    
    Re: Re:
    and pizza is a vegetable
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- Ninja (profile), 24 Sep 2015 @ 10:54am
  
  Re:
  Awesome. I decided to name my car Johnny and write a book about my fictional adventures on it so I can sue Volkswagen to get a cut of every car produced. Think of Johnny and his maintenance needs! Though truth be said Johnny can last for more than 75 years after I die so I think we should extend copyrights to infinity. Think of Johnny!
  [ link to this | view in chronology ]
  - jupiterkansas (profile), 24 Sep 2015 @ 12:29pm
    
    Re: Re:
    Get ready for a lawsuit from Herbie.
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  - Klaus, 25 Sep 2015 @ 3:01am
    
    Re: Re:
    "...on it so I can sue Volkswagen..."
    
    Is Johnny a diesel?
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- Derek Kerton (profile), 24 Sep 2015 @ 1:46pm
  
  Re:
  "Automobiles are characters my friend."
  
  ...And Mitts are like puppets.
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Geno0wl (profile), 24 Sep 2015 @ 6:24am

well well well
So if in the next Bond film if they make his car a muscle car and happen to paint it black...would that violate the Batmobile copyright?
would they dare sue?
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Spudster, 24 Sep 2015 @ 6:25am

Not Surprising
Licensing for vehicles is very common. Every legit plastic or diecast model of a vehicle has to have a license to be able produce that model. Be it a car, truck, airplane, etc.
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- Anonymous Coward, 24 Sep 2015 @ 9:26am
  
  Re: Not Surprising
  Thank you.
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Roger Strong (profile), 24 Sep 2015 @ 6:54am

"Some days you just can't get rid of a copyright."
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John Fenderson (profile), 24 Sep 2015 @ 6:54am

K.I.T.T.
Hmmm, every part of the judges analysis could be interpreted as apply to K.I.T.T. from Knight Rider as well. It isn't even hard to argue that there's a bat-like quality to it.
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- Dingledore the Flabberghaster, 24 Sep 2015 @ 8:50am
  
  Re: K.I.T.T.
  And K.I.T.T. should be copyrightable. But not the car itself, but the name (and maybe some stock phrases).
  
  And it's the same with this, imho. The name Batmobile should possible to copyright, but a bat-like car that's not explicitly called Batmobile could just as easily be driven by Man-Bat or Bat Fink.
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- Anonymous Coward, 24 Sep 2015 @ 8:55am
  
  Re: K.I.T.T.
  True.
  
  However, KITT was a customized Pontiac Trans Am of which there were lots being sold on the market. Were somebody to buy one and customize it to match KITT they might run afoul of the same issue should the Knight Rider folks pursue it.
  
  Not to mention running afoul of the laws regarding red lights on the front of the vehicle!
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  - John Fenderson (profile), 24 Sep 2015 @ 12:22pm
    
    Re: Re: K.I.T.T.
    I meant that it could be easily argued that K.I.T.T. is in violation of the batmobile "copyright".
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  - Anonymous Coward, 24 Sep 2015 @ 1:16pm
    
    Re: Re: K.I.T.T.
    Except, buying a Trans Am and then making the modifications yourself (not selling it) is different than buying many Trans Ams and selling them for profit.
    [ link to this | view in chronology ]
Anon, 24 Sep 2015 @ 6:56am

Why Not?
If character copyright and trademark applies to James Bond, Mickey Mouse, Ronald McDonald - why would it not apply to Darth Vader - "more machine than man"? C3P0 or R2D2 would also qualify as characters, even though R2D2 has no arms or legs. I can see by that logic, the concept of the "Batmobile" in all its forms - just like Bond in all his forms - is a character and should be trademark-able.

I kind of wonder about Eleanor though - a basic car that is just like a car (and IIRC basically stock off-the-shelf car)is kind of hard to think of as distinctive. The original comes to mind and I didn't see the car as anything more that a heavily beat-up (by the end) car. In fact, the ending of the movie (spoiler!!!) they do a complete swap with an identical car.

At least General Lee had a distinctive racist paint job (in keeping with the name) and was essentially indestructible.
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Violynne (profile), 24 Sep 2015 @ 7:04am

One can only hope this comes back to bite DC in its ass as the car companies [i]whose bodies are clearly identifiable in some versions[/i] sue the living shit out of DC for copyright infringement.
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Dave Howe (profile), 24 Sep 2015 @ 7:28am

So... when does it expire?
Earliest appearance will have been in the pulp comics - so presumably (unless it gets forever extended as a side effect of Mikey Mouse) it will expire or have expired?
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Anonymous Coward, 24 Sep 2015 @ 7:34am

The courts ruled correctly. The Batmobile is a copyrighted character of the Batman comics. That moron should have realized that.
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- Anonymous Coward, 24 Sep 2015 @ 8:12am
  
  Re:
  Props are not typically considered characters. Is Dr Who's Sonic Screwdriver a character despite being a prop? Is Harry Potter's Golden Snitch or his wand? Is the memetic Rabbit-producing-top-hat?
  
  The previous AC "moron" should have realized that there was substantial ambiguity, or there would not have been a specific determination about the car's status as "a character", there would have been just "is infringing" or "is not infringing".
  [ link to this | view in chronology ]
  - John85851 (profile), 24 Sep 2015 @ 4:16pm
    
    Re: Re:
    When does a prop become it's own character? You could claim that the Doctor couldn't get out of a jam without the sonic screwdriver. And if the Golden Snitch flies around on its own, how is it any different than R2-D2?
    
    However, I think the real issue is that the guy was making replicas without official permission from DC Comics, so they sued with any laws they could think of.
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- John Fenderson (profile), 24 Sep 2015 @ 8:41am
  
  Re:
  "That moron should have realized that."
  
  How would he have known that? Generally, "characters" cannot be copyrighted (that characters can be copyrighted in some cases just speaks to how broken copyright law is), so what would make him think the batmobile would be an exception?
  [ link to this | view in chronology ]
  - Michael, 24 Sep 2015 @ 8:43am
    
    Re: Re:
    what would make him think the batmobile would be an exception?
    
    Because it is owned by a large litigious company, of course.
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- Anonymous Coward, 24 Sep 2015 @ 3:47pm
  
  Re:
  under that logic, any model of car could be claimed to be copyrighted simply for being in a film, tv series, book, comic, etc.
  
  Why stop there. Why not claim all objects are copyrighted characters
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dtyree (profile), 24 Sep 2015 @ 7:35am

So if the batmobile has a copyright, what about the Lone Ranger and his horse Silver?
Wonder if his horse has a copyright?
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- Spudster, 24 Sep 2015 @ 8:37am
  
  Re:
  Of course it would if you produce a horse model that looks like Silver and call it Silver.
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Anonymous Coward, 24 Sep 2015 @ 8:29am

how about putting 'HAPPY BIRTHDAY' across the hood of the next build? would that give Mark Towle the right to recreate? the problem with these decisions seem to be the judges. i wonder how much 'copyright' they got for ruling this way?
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jupiterkansas (profile), 24 Sep 2015 @ 8:29am

And the award for best actor goes to... "The Batmobile" Yes, it brought tears to my eyes when it jumped over that ravine, and who can forget it's hilarious performance trying to find a parking spot in the garage. Hopefully this award will end the ongoing argument over which vehicle portrayed The Batmobile the best.
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- DogBreath, 24 Sep 2015 @ 10:23am
  
  Re:
  Well, you do have to admit, many scenes would be less interesting if there wasn't a Batmobile. Without it, there would be no priceless gems like this.
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Anonymous Coward, 24 Sep 2015 @ 8:32am

Storm Troopers
It's no different than Star Wars stormtrooper uniforms. Poor George was unable to get a copyright on Storm Troopers, since they are a (what's the term?) casting element (like the Left Shark) and not eligible for copyright.

The same thing is true of the Batmobile.
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Anonymous Coward, 24 Sep 2015 @ 9:15am

Mixed question of fact and law
From the Judge Ikuta's opinion:
Second, Towle argues that a jury should decide the question whether the Batmobile displayed unique elements of expression and consistent, widely identifiable traits. We disagree.
(Emphasis added.)

Compare Amendment Seven:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .
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Rekrul, 24 Sep 2015 @ 9:19am

Unless DC is magically planning to get into the car licensing business (really?), it's hard to see why it feels the need to step in and shut this down, other than to piss off some Batman superfans (with money to burn). Is that really a wise use of DC's legal resources?

Repeat after me: MINE! MINE! MINE!
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guardian, 24 Sep 2015 @ 9:50am

sick of batman
this just adds to dc's demise it is after all involved with warner and sony
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Larry Zerner (profile), 24 Sep 2015 @ 10:42am

Background on Batmobile
As the (losing) attorney on this case, I just wanted to add a bit of background and give my 2 cents. I'm a big fan of Techdirt and the Techdirt community and appreciate that they understand that not everything is automatically protected by copyright.

First, with regard to the question as to whether DC does license an official Batmobile car, they do. My client began selling replica Batmobiles in 2001. Ten years later, in 2011, DC entered into a deal with another replicator, Mark Racop (www.fiberglassfreaks.com), and gave him a contract to sell officially licensed Batmobiles. Racop then told DC to sue Towle.

Second, and what most people seem to forget, is that the copyright act specifically states that there is no copyright protection for the design of automobiles because they are "useful articles." In fact, if you go to the Copyright Office website you will find a page that states this:

"Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design."
(http://www.copyright.gov/register/va-useful.html)

So the Copyright Office has made it clear that drawing a car does not give you the exclusive right to the design of those cars.

Third, even if the Batmobile were to qualify as a character, the copyright should only extend to the qualities of the character that are not part of the car's design. This decision absolutely says that Ian Fleming's estate now owns the copyright to the Aston Martin, Disney owns the copyright to the Volkswagen (because of Herbie the Love Bug), and Universal owns the copyright to the Pontiac Trans-Am that played KITT. I believe many of you can see that this makes no sense. These characters exist in movies and TV shows. They don't exist in the real world. If someone sells a Trans-Am and calls it KITT, that may be a trademark issue, but in no way should it violate a copyright.

Anyway, thanks for letting me rant for a bit and get that off of my chest.
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- Anonymous Coward, 24 Sep 2015 @ 10:53am
  
  Re: Background on Batmobile
  Thanks for the information. Certainly clears up my question earlier in the thread about the whole licensing issue. The repercussions are also very interesting as you point out.
  
  Copyright - the gift that keeps on giving! Like herpes! :p
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- Ninja (profile), 24 Sep 2015 @ 10:57am
  
  Re: Background on Batmobile
  Start giving names to all cars and see how fast this turns into pure madness!
  
  Thanks for your contribution, have my insightful vote, sir.
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- Anonymous Coward, 24 Sep 2015 @ 12:03pm
  
  Useful articles [was Re: Background on Batmobile ]
  www.copyright.gov/register/va-useful.html [Useful Articles]
  
  17 U.S.C. § 113 - Scope of exclusive rights in pictorial, graphic, and sculptural works
  (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.
  Unfortunately, the “useful article” doctrine has seen significant erosion in recent years, especially in the Ninth Circuit. A great deal of that erosion seems to have been brought about by the now-well-settled copyrightability of computer code.
  
  Computer code, both source and object, is intrinsically useful. Yet it also shares enough surface similarity to written works of literature that notions like translation rights and even movie rights to a computer program don't seem all that far-fetched.
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- Anonymous Coward, 24 Sep 2015 @ 12:25pm
  
  Re: Background on Batmobile
  www.copyright.gov/register/va-useful.html [Useful Articles]
  From Justice Douglas' concurrence (joined by Justice Black) in Mazer v Stein (1954)
  Article I, § 8 of the Constitution grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings . . . ." The power is thus circumscribed: it allows a monopoly to be granted only to "authors" for their "writings." Is a sculptor an "author" and is his statue a "writing" within the meaning of the Constitution? We have never decided the question.
  Is a car mechanic an “Author”, and an automobile a “Writing”?
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Anonymous Coward, 24 Sep 2015 @ 12:36pm

Horse-tank-mobile
Have the judges watched the last 3 batman movies ? They stated that the batmobile allways keeps bat-like attributes and the new batmobile looks more like a tank. Apart from it's black color and up to date weaponry it doesnt keep any of the attributes. In fact its designed as a big ram that can drive into anything more than a faithfull steed akin to Zorro's black horse. Could they have stolen the idea from it ? The color is the same. It waits faithfully shiver[ing] as its super-charged muscles throbs with energy” before it “tears after the fleeing hoodlums” after all.
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Roger Strong (profile), 24 Sep 2015 @ 1:57pm

Up Next...
Universal Pictures sues the Chicago police force for violating its copyright on the Bluesmobile.
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r_rolo1 (profile), 24 Sep 2015 @ 3:17pm

Should someone phone Lamborghini?
In case no one noticed, Lamborghini has a nice recent ( definitely more recent than Batman and his car ) model called Murcielago aka Bat. And if being a car with bat-ness and high tech are the only prereqs for a car to be a Batmobile, well, then Lamborghini is infringing BIG time :P
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- Roger Strong (profile), 24 Sep 2015 @ 3:37pm
  
  Re: Should someone phone Lamborghini?
  In that case they should also Ferrari.
  
  One trait of all Batmobiles is the flames shooting out the back. The Ferrari 458 Italia often infringes big-time.
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- Scott, 24 Sep 2015 @ 6:10pm
  
  Re: Should someone phone Lamborghini?
  No that car has none of the attributes of the Batmobile. You are stretching way too far.
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  - r_rolo1 (profile), 25 Sep 2015 @ 7:58am
    
    Re: Re: Should someone phone Lamborghini?
    Well, let's see. First of all, you would have to define what a Batmobile is ;)
    
    The issue is that the appeal court definition of Batmobile is quite holed, since it lefts out some of the actual Batmobiles ( say, not all of the Batmobiles had jet engines ) and if you pick all that is common to all of them, you get ... well, a high tech for the time slightly bat-flavoured car. A Lamborghini Murcielago is a high tech for the time bat-flavoured car ( just ask the designer ;) ), so ...
    
    Well, this is without the crazyness of trying to propel a stage prop to a character considered. So next, maybe Anakin lightsaber will be one too ( seriously, it would have better standing to it according with this Appeal court rulling, since atleast it is a very easy to define object, unlike the Batmobile ) ?
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Scott, 24 Sep 2015 @ 6:01pm

Licensed Batmobile Replica
It seems many of you are not knowledgable and just blowing smoke. DC Comics does offer 1966 Batmobile replicas through a company in Indiana called Fibergalss Freaks. They currently as far as I know offer no other versions full scale replicas of the Batmobile for sale as licensed. They obtained the Trademark for driving Batmobiles in that class in the US in 2013. Just saying you all can complain but if you created a character, supported it and then someone else started copying it and making money off your Creativity and investment I am sure none of you would be too happy about it.
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- John Fenderson (profile), 25 Sep 2015 @ 6:45am
  
  Re: Licensed Batmobile Replica
  Except that this is not a case where anyone is alleging trademark infringement.
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Scott, 24 Sep 2015 @ 6:03pm

Licensed Batmobile Replica
It seems many of you are not knowledgeableand just blowing smoke. DC Comics does offer 1966 Batmobile replicas through a company in Indiana called Fibergalss Freaks. They currently as far as I know offer no other versions full scale replicas of the Batmobile for sale as licensed. They obtained the Trademark for driving Batmobiles in that class in the US in 2013. Just saying you all can complain but if you created a character, supported it and then someone else started copying it and making money off your Creativity and investment I am sure none of you would be too happy about it.
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Scott, 24 Sep 2015 @ 6:08pm

Objects as Characters
If you boys are not going to read the ruling why are you even commenting? A character has to be unique and consistent to enough attributes. Like Elenore from gone in 60 seconds. Yes you are right this makes little sense but it's a done deal now. Any item a light saber to a star trek phaser now could be determined to be protected and this is a shame. It's very damaging to all people building unlicensed products. Mark Towle should have taken a deal, instead he through everyone under the bus with his fighting a giant like DC Comics.
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BernardoVerda (profile), 24 Sep 2015 @ 7:56pm

So...

Would it me prepature for me to conclude that
the 9th Circuit is the Copyright Law equivalent of the CAFC?

"Intellectual Property" appears to have become one of the banes of modern civilization.
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- Anonymous Coward, 25 Sep 2015 @ 10:26am
  
  Appearances [was Re: ]
  … to conclude that the 9th Circuit is the Copyright Law equivalent of the CAFC?
  I suspect that a number of people familiar with House Report 94-1476 may recall the commentary attached to § 113:
  The broad language of section 106(1) and of subsection (a) of section 113 raises questions as to the extent of copyright protection for a pictorial, graphic, or sculptural work that portrays, depicts, or represents an image of a useful article in such a way that the utilitarian nature of the article can be seen. To take the example usually cited, would copyright in a drawing or model of an automobile give the artist the exclusive right to make automobiles of the same design?
  
  The 1961 Report of the Register of Copyrights stated, on the basis of judicial precedent, that “copyright in a pictorial, graphic, or sculptural work, portraying a useful article as such, does not extend to the manufacture of the useful article itself,” and recommended specifically that “the distinctions drawn in this area by existing court decisions” not be altered by the statute. The Register’s Supplementary Report, at page 48, cited a number of these decisions, and explained the insuperable difficulty of finding “any statutory formulation that would express the distinction satisfactorily.” Section 113(b) reflects the Register’s conclusion that “the real need is to make clear that there is no intention to change the present law with respect to the scope of protection in a work portraying a useful article as such.”
  
  Now does that mean people who read this latest decision are all thinking “Chief Judge Randall Rader” right now? Well, if people are thinking that, they'd probably best not say it.
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Anonymous Coward, 24 Sep 2015 @ 11:51pm

Hoverboard
I'm sorry! I was about to release a hoverboard but now that it is probably under copyright Im sorry to say that I'll have to wait some decades.

It works and carries a person for 10h but hey, what can one person do against progress aka patents?
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Anonymous Coward, 25 Sep 2015 @ 4:53am

> It cannot be a stock character such as a magician in standard magician garb

But it can be a batman in standard batman garb? I mean, batman has been around all my life. Magicians have been around all my life. Arguably, batman is even more of a stock character than a magician, to me, given that I've seen more batman than wizards on screen. Somebody invented the standard robed magician look, probably Tolkien, so why are wizards in fantasy works not all infringing on the Gandalf character copyright?
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- jupiterkansas (profile), 25 Sep 2015 @ 7:56am
  
  Re:
  For starters, wizards predates copyright, unlike Batman.
  
  Second, a wizard is a generic character type, like a policeman or a bartender (or a superhero) - it's not a specific character. Call your wizard Gandalf and you're dealing with copyright. Call him Randalf and you're fine.
  
  Also, there are far more wizards in movies than there are batmans.
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