Batmobile Declared a Character Deserving of Copyright Protection, Finally Invincible

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.

Final Thoughts

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.


  1. This is one of those cases that’s basically tautological — the existence of the product itself is what makes both the copyright protection and the infringement clear. If Towle’s cars were not recognizably the Batmobile, there wouldn’t be a market for them. To claim to buyers that he’s selling replicas of a particular car and to the court that the particular car isn’t original enough to warrant protection is disingenuous.

  2. Regardless of any justification for whether they merit protection or were infringed, I have great difficulty getting beyond the characterization of cars–Eleanor and the Batmobile–as “characters”.

    It seems altogether illogical and dangerous to use language intended to describe those sentient beings in works who would, at some moment in that very literary or cinematographic work, be at least capable of communicating something to the other characters or the audience. Or, particularly in the case of cinematographic works, such persons or beings who are likely to be given a line of dialogue or a cue in the script.

    In Halicki, the court points out “In the Original GSS, the main character says ‘I’m getting tired of stealing this Eleanor car.’ And in the Remake GSS, the main character refers to his history with Eleanor.” Oddly enough, it did not raise any concerns that Eleanor would not rev its engine or flash its headlights in response, because it is an inanimate object, useless and non-communicative without the assistance of a true character in the film.

    Whether or not they are sufficiently delineated is one thing, but should courts not first consider whether a potentially protectable character is even a character to begin with? Eleanor and the Batmobile are not Knight Rider’s K.I.T.T., nor 2001’s HAL. They are not capable of communication in the same way as are Godzilla, James Bond, Sam Spade, and all other characters previously deemed characters in American jurisprudence. As the defence put forth in Halicki, they are “simply cars” and to refer to them as characters is to suggest any sufficiently delineated inanimate object with a name may, too, be copyrightable. What other consistent inanimate objects from film constitute characters? Is the Planet Krypton a character? What about Indiana Jones’ whip?

  3. I don’t see why the classification as a character is important to begin with. The question to be answered is whether the subject matter of the copyright is a sufficiently distinctive element.

    A classification as a “character” does not automatically entitle that character to copyright protection; only distinctive characters are entitled protection. For example, in Rice v Fox, generic characters fulfilling generic functions were not entitled to protection.

    Even if the Batmobile was not considered to be a “character”, I think there are sufficient consistently distinctive features that there would be a finding of sufficient distinctiveness regardless.

    More concerning, I think, is the potential for apprehension of bias by the decision maker. Judge Ikuta appears to be a fan of the Batman franchise, littering the decision with phrases like “Holy copyright law, Batman!”, “To the Batmobile!” and concluding with a quote from Batman himself: “In our well-ordered society, protection of private property is essential.” It is not surprising that the judge decided in favour of DC.

    [Commentator note: the preceding paragraph is not to be taken seriously. An informed person, viewing the matter realistically and practically and having thought the matter through, would not conclude that Judge Ikuta was biased when rendering the decision. It was just an excuse to quote hilarious lines from the written decision.]

    Lastly, corpulent penguins may help address some of the OP’s lingering concerns, at least within the trademark context. However, I suspect that more comfort might be found by the attempts through the ages to answer that ancient thought experiment regarding the Ship of Theseus.

  4. Part of the intuitive concept of a character is that he/she/it can sustain a derivative work such as a sequel or prequel. For example, the Writers Guild of Canada (WGC) recognizes this in its Independent Production Agreement by requiring royalties be paid to the originating writer of a “story line” or “character” if either of these is continued in a new work that is not also written by the same writer.

    I can understand that a character need not be human, especially with the popular fascination with artificial intelligence. There are many instances of robots (e.g., Wall-E) and aliens (e.g., E.T.) who are popularly understood as characters. However, it is difficult to envisage an instance where a character alone can continue and sustain a derivative work if it has no anthropomorphic qualities.

    Is the Batmobile a character in this sense? If it were originated by a WGC writer would that writer expect a continuing character royalty from every sequel, prequel and remake in which it came to be used? It is possible that it could appear in a story that does not include Batman – along the lines of stories about inanimate things like “The Red Violin” (the life story of a violin) or “The Gun” (the life story of a gun). However, I doubt that it would be popularly considered a character in such a story. More likely it would be seen as a prop that the characters relate to.

    The court in this case should not have considered a car with no anthropomorphic features to be a character. I think they might have arrived at the same result by staying strictly within the classic copyright infringement analysis of any work – whether reproduction of the Batmobile was a substantial part of the Batman comic. Perhaps quantitatively it is not but qualitatively it is.

    Better yet, the court might have taken the route of a passing off analysis. As noted in another post, it is doubtful that a reproduction of a car with similar features to the Batmobile would attract commercial interest unless the reproduction invokes the name and some features of the original Batmobile and Batman comics, per se.

    I recently saw a fedora for sale that looked like any number of other hats of that style except it was sold as an authentic Indiana Jones hat. It was a properly licensed piece of merchandise. I think it damages the already strained relationship between copyright and common sense if we were to treat such a hat as a “character” and embark on lengthy and minute analysis of its cut and style depicted in the film series. I think it is more productive to deal with it simply as merchandise merely trading on the commercial association to the goodwill of a copyright owner.

  5. @Lou – The classification as a character is important only because the court chose to classify cars as such. If the court wants to develop and expand the concept of “sufficiently delineated” to any object that exists in any format protected by copyright, they are free to do so. But, I think that classifying cars as “characters” does not make any logical sense. Copyright law and what merits protection is ambiguous and unclear as it is. Making it muddier does not seem a good approach, and classifying the Batmobile as a character makes the question of what gets protection–particularly what gets protection within another already protected work–extremely unclear.

  6. Thanks for the interesting comments.

    @Tony – It is worth noting that DC Comics did succeed in a trademarks infringement claim against Towle. Towle conceded to infringing trademark; but, asserted a defense of laches. The court rejected the defense.

    Stating that Towle copied that Batmobile depicted in the 1966 and 1989 movie is one thing. Stating that Towle copied the Batmobile character is another. The ambit of protection is larger for a character than a FIXED object, like the design of a car. “Eleanor” is a better of example than the “Batmobile” to see the difference. “Eleanor” changed colour, make and model between films; however, the character was deemed the same. When an “object” is deemed a “character”, it takes on life so to speak. It is not only a copy of the exact object that will be infringing but also a copy of a substantial amount of the underlying characteristics and traits of the object/character. This sits uneasy.

    “Sufficient delineation” is an amorphous standard that may never be defined as a precise standard. However, as I mentioned in the original post, it seems like the name of the object acts a linchpin to “sufficient delineation”. This is definitely the case for “Eleanor”. When this happens, I always feel like the domains of trademarks and copyright get blurred.

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