This Joker hasn’t quite been defeated yet. A mechanic that was found liable for copyright infringement after creating unauthorized replicas of the Batmobile now wants the Supreme Court to overturn the loss claiming the car cannot be considered a character entitled to copyright protection.
When an appeals court decision starts with “Holy copyright law, Batman!” you have a good idea which way the court is going to rule. Batman debut in 1939 with his trusted sidekick, the Batmobile (way better sidekick than Robin). Over the years the Batmobile has undergone many changes but more or less stayed the same possessing the same bat-like external features and being equipped with futuristic weaponry used to take down Gotham’s villains.
Defendant, Mark Towle, is a big Batman fan and started reproducing the look of the Batmobile and selling replicas, specifically of the cars featured in the 1966 television show and the 1989 movie. (You can see these iterations of the Batmobile below.) Towle sold the cars for approximately $90,000 a piece and also sells kits that allow customers to modify their own cars to look like the Batmobile. In May 2011, DC Comics filed this case for trademark and copyright infringement because Towle never sought permission to reproduce DC Comics’ intellectual property. Towle admitted to his crimes when interrogated by Batman, and DC Comics’ lawyers, but claimed that the Batmobile is not entitled to copyright protection because it is a car. Towles lost the case and appealed the decision to the Ninth Circuit Court of Appeals.
Generally, automobiles are not entitled to copyright protection as a character. However, the lower court ruled that the Batmobile has always been depicted as more or less the same way and is, by itself, a “superhero” and an extension of Batman’s own character giving rise to a level of protection. The Ninth Circuit laid out a three-part test for determining whether characters are eligible for copyright protection: 1) it must have“physical as well as conceptual qualities;” 2) it must be “sufficiently delineated” to be recognizable as the same character whenever it appears; and 3) it must be “especially distinctive” and “contain some unique elements of expression.” The court held that the Batmobile meets this test because it displays “consistent, identifiable character traits and attributes” and is not merely a stock character but a “loyal bat-themed sidekick”. Therefore, the Batmobile is entitled to copyright protection as a character.
Towles is out of business selling his Batmobile replica cars and modification kits but this battle is not quite over yet. On Friday, Towles submitted a petition for a writ of certiorari (a formal method of requesting that a higher court review a decision) to the highest court in the land, the Supreme Court. The legal arguments haven’t changed but Towles wants the Supreme Court to review the decision claiming that it would have drastic effects on copyright law. Towles argues again that the Batmobile designs are covered by expired design patents and not copyrightable as a character. Towles claims that the consequences of the decision are “dramatic and pervasive” as the opinion will allow anyone to obtain copyright protection over useful items simply by drawing them in a comic book and calling it a character.
The Supreme Court must first decide whether it will take on the case, not likely, and if it does will hear written and oral arguments on the matter.
Image of Batmobiles