The U.S. Ninth Circuit court held in DC Comics v Towle (“Towle”) that Mark Towle’s Batmobile replicas infringed DC Comics’ copyrights, and that the Batmobile was a “character” deserving of copyright protection.
Mark Towle is the owner of Gotham Garage which produces unlicensed replicas of the Batmobiles from the 1966 TV series and 1989 movie. Towle made two claims in defense to the copyright action: first, the Batmobiles appearing in the 1966 TV series and 1989 film were not entitled to copyright protection; and, second, DC Comics did not own the copyright to the Batmobile that appeared in the show and movie.
Judge Ikuta, who wrote the opinion, stated that the Batmobile contains consistent, identifiable character traits worthy of copyright protection, similar to that of a sentient character. She also found that DC Comics never surrendered their underlying rights when licensing derivative works of the Batmobile. Although a fair judgment may have been reached in this specific situation, Towle’s application to other cases offers a low threshold for sufficient character delineation and may result in copyright protection where none is warranted.
Is the Batmobile entitled to Copyright Protection?
In order to attract copyright protection, a character must be “sufficiently delineated” and contain consistent and recognizable characteristics. DC Comics must show that the Batmobile is sufficiently delineated to be recognizable whenever and wherever it appears. Relying on the 2008 decision in Halicki Films v Sanderson, the court distinguished physical appearance from attributes and traits. Towle correctly pointed out that there are several physical differences between the 1966 Batmobile, 1989 Batmobile, and the iterations in the comic books, positing that these differences are enough to declare the car insufficiently delineated. However, the court rejected this line of argument, and stated that it is enough that the Batmobile always maintains consistent attributes and traits, including interactive features, bat-like design, and high-tech weaponry that help Batman fight crime.
The court used spurious examples from other films to show how consistent traits are sufficient for this stage of the test. Judge Ikuta, for example, stated that “Godzilla is always a prehistoric, fire-breathing, gigantic dinosaur alive in the modern world”. However, the two most recent Godzilla films have shown this to be untrue. 2014’s Godzilla is a member of a species of massive, prehistoric amphibious reptile that feeds off radiation. Technically, Godzilla does not breathe fire, but atomic breath, gained from exposure to the atomic bomb that mutated him. 1998’s Godzilla is a mutated lizard, specifically a marine iguana.
Similarly, Halicki decided that “Eleanor”, a car that appeared in both the original and remake of Gone is 60 Seconds, is entitled to copyright protection. The court ruled it warranted protection after considering Eleanor’s persistent attributes like the name–“Eleanor”–and its difficulty to steal. The court was silent on the distinct variation in colour and model of the car between films.
Another example drawn on by the decision-makers in Towle was the 2011 case of Warner Bros Entertainment v X One X Productions , where the Eighth Circuit stated that “the presence of distinctive qualities apart from visual appearance can diminish or even negate the need for consistent visual appearance [emphasis added].” The character must be sufficiently delineated to be recognizable whenever it appears. It would be interesting to see how the Court would have ruled if Towle had copied the Batmobile (referred to as the Tumbler) in the recent Dark Knight Trilogy. Here, the “bat-like design” emphasized by the court as a delineating attribute of the Batmobile is absent. The Tumbler looks more like a cross between a Lamborghini and tank than the “bat-like” vehicle depicted in the DC comics. The Tumbler is recognizable as the Batmobile solely because Batman is driving it. It is true that the Batmobile consistently contains high-tech weaponry and helps fight crime, but so do James Bond’s cars. This would suggest that the “Batmobile” name in combination with its innate characteristics plays an important role in its delineation; however, this is not explicitly stated in the judgment.
It is unclear how many attributes or traits, and in what combination, suffice to justify protection. This stage of the test relies heavily on the intuition of the judiciary to set a threshold, resulting in uncertainty as to what constitutes sufficient delineation.
Does DC Comics own the Copyright to the Batmobile appearing in the 1966 TV series and 1989 movie?
After the Court established the copyrightability of the Batmobile as a character, it turned its collective mind to whether Towle’s replicas infringed DC’s copyright. Towle claimed that the Batmobile appearing in the 1966 TV series and 1989 movie productions are not what is depicted in DC’s comic books. In the 1990 case Stewart v Abend, the court stated that when the owner of a copyright protected work authorizes a third party to prepare a derivative work, the owner of the underlying copyright retains copyright in that derivative work with respect to all elements that the derivative creator relied upon. The derivative creator holds a copyright in non-trivial contributions to the original work. This makes the absence of a comparison between DC’s underlying work and Towle’s replicas very troubling. Towle willingly admitted to copying the derivatives; but, it is not the derivative producers that are claiming copyright infringement, it is DC Comics. Therefore, Towle’s replicas should be compared to the elements of the underlying DC comics which were relied upon by the derivative creators.
Although the derivative Batmobiles copied by Towles are not the spitting images of those found in the DC comics, they were not distinct enough to deny DC ownership of the underlying work. However, it’s doubtful whether the decision will consistently lead to just results when applied to future cases. The decision admirably attempted to clarify the copyrightability of characters. But the court missed the mark on a robust definition of “sufficiently delineated”. The examples provided within the judgment suggest that the court is putting too much emphasis on consistent underlying traits and not enough on physical similarity when it comes to determining if objects are characters worthy of copyright protection. When objects are permitted to change in physical appearance but maintain copyright protection because they have consistent traits, protection is essentially being afforded to the “name” of the object and not the object itself. I think it is very likely that this application will lead to protection for characters, specifically objects, that are not sufficiently delineated to warrant copyright protection. On a positive note, the decision is clear in that non-sentient characters, even ones that do not communicate are copyrightable.
I would love to hear your thoughts on this decision. Do you share my concerns?
Justin Philpott is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.