Pow! Boff! Thwack! Batmobile Wins Copyright Litigation

Intellectual Property Litigation
by Nicholas Kanter
818-907-3289

It’s not every day a Ninth Circuit court opinion includes, “Holy copyright law, Batman!,” or “To the Batmobile!”  But in affirming a district court’s ruling in a copyright infringement case by DC Comics against the maker of Batmobile replicas, Judge Sandra Segal Ikuta chose these choice quotes, among others, to add a little more drama to the case.

DC Comics’ lawsuit centered on the Batmobiles driven by actor Adam West in the 1966 television series Batman, and actor Michael Keaton in the 1989 motion picture BATMAN.  Mark Towle, owner of Gotham Garage, made and sold replicas of these super autos for and to car collectors – to the tune of $90,000 each.

DC Comics, a company of Warner Bros. Entertainment and Time Warner, brought suit against Towle in 2011 in the United States District Court for the Central District of California alleging copyright and trademark infringement, as well as unfair competition. The parties filed cross motions for partial summary judgment as to DC Comics’ trademark, copyright and unfair competition claims, and as to Towle’s laches defense (wherein he claimed DC waited too long to sue for trademark infringement).

The District court granted DC’s motion in part, finding the Batmobile was a character entitled to copyright protection because the vehicle:

1. Is known by one consistent name that identifies it as Batman’s personal vehicle;

2. Has several traits that remained consistent over time, including “high-tech gadgets and weaponry”, color and bat motifs; and

3. Has personality traits, consistently depicted as “swift, cunning, strong and elusive”, and is even portrayed as a “superhero, Batman’s sidekick, if not an extension of Batman’s own persona.”

9^th Circuit Opinion: “To the Batmobile!”

In affirming the District Court’s opinion, the 9^th Circuit relied on prior copyright infringement cases involving characters in comic books, television shows and movies:

Not every comic book, television, or motion picture character is entitled to copyright protection. We have held that copyright protection is available only “for characters that are especially distinctive.” Halicki [Films, LLC v. Sanderson Sales & Marketing], 547 F.3d at 1224. To meet this standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) (citing Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F. Supp. 2d 1206, 1215 (C.D. Cal.1998) (Godzilla)).

The 9^th Circuit, like the district court, also applied a three part test, determining that a character entitled to copyright protection must:

1. Have “physical as well as conceptual qualities”;

2. Be “sufficiently delineated”, or immediately recognizable; and

3. Be “especially distinctive and contain unique elements of expression”, i.e. not just any black sports car with weapons.

The court found that the Batmobile is a copyrightable character, that DC Comics is the owner of the copyright and that Towle infringed on DC Comics’ exclusive right to produce derivative works of the character.

Nicholas Kanter is a Business Litigation Attorney at our firm. Contact him via email: nkanter@lewitthackman.com, or by phone: 818-907-3289.

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