To the Batmobile, Let’s Go! A Review of Copyrightable Subject Matter
Friday 9th October 2015
Article written by: Thomas Huthwaite
In what might be the most entertaining copyright decision of the year, The US Ninth Circuit Court of Appeals held that the Batmobile is a copyrightable character.  In doing so, the Court affirmed and summarised a useful list of criteria for determining when a fictional character will be copyrightable.
For some of us, reading Judge Ikuta’s opinion involves taking a trip down memory lane, with the Judge referencing many iconic aspects of the Batman 1966 TV show and 1989 film, as well as other pop-culture such as Gone in 60 Seconds, James Bond, and Godzilla.
Criteria for copyrightable characters
There is no doubt that fictional characters may be afforded copyright protection, and many have already been considered by the US Courts – from Mickey Mouse to the A-Team and Sherlock Holmes. However, not every character is entitled to protection. Copyright protection will only extend to “especially distinctive” characters within an original work. In order to reach this threshold, a character must:
- display “consistent, widely identifiable traits” comprising “physical as well as conceptual qualities”;
- Be “sufficiently delineated” to be recognised as the same character wherever it appears; and
- Be “especially distinctive” and “contain some unique elements of expression.”
A character that simply performs a routine or known activity is not protectable. The 1986 “Mystery Magician” (who simply revealed how to perform several well-known magic tricks and illusions) was not protectable under copyright law, and therefore could not prevent publication of the 1997 “Masked Magician” (whose premise was the same). Both characters were magicians who simply functioned as magicians.
Similarly, the broad concept of an alien with supernatural powers, stranded on a planet and hunted by an authority, was not protectable or enforceable against Steven Spielberg’s character “E.T. – The Extra-Terrestrial”. However, the character E.T. (including his odd appearance, glowing finger, and catchphrase “E.T. Phone Home”) was distinctive enough to attract copyright, which could be enforced against others.
To summarise more broadly, “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinctly.”
In the same way, it is clear that an automobile that simply functions as an automobile will not be copyrightable as a character. But, if Disney films and comic books have taught us anything, it’s that inert and ordinary objects (from automobiles to clocks to candlesticks) may be imbued with just as much character as any distinctive humanlike character.
In fact, the US Court of Appeals has previously considered copyright in an automobile. In Halicki, the Court considered whether the car “Eleanor” from Gone in 60 Seconds (both the 1971 film and the 2000 remake) was entitled to copyright protection as a character. The Court found that Eleanor met some of the criteria for copyright protection. Anyone familiar with the films will know that Eleanor is a desirable Ford Mustang, a “true lady both beautiful and tough”, with a mystical affinity: “a fabled creature… impossible to catch.” That is, anyone who tries to steal Eleanor ultimately fails.
A complicating factor in Halicki was that Eleanor adopted slightly different physical appearances in the two films: in the first, she was a customized yellow 1971 Fastback Ford Mustang, and in the second, a silver 1967 Ford Mustang Shelby GT-500. Nonetheless, Eleanor’s visual appearance was not entirely inconsistent (she was a Mustang), and overall those differences did not diminish her other identifiable and distinctive qualities. Halicki Films takes great pride in calling Eleanor the “lead” of the 1971 film, giving her the “Star title credit” and “making Eleanor a household name.”
The US District Courts have made similar rulings about other famous characters whose appearances have changed, but nonetheless their distinctive traits and attributes have persisted, thereby qualifying them for copyright protection. For example:
- James Bond, despite his portrayal by at least seven different actors, always maintains his “cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication.”
- Batman’s “costume and character have evolved over the years, [but they have also] retained unique, protectable characteristics”.
- Similarly, Godzilla “is always a pre-historic, firebreathing, gigantic dinosaur alive and well in the modern world.”
If the character is found to be copyrightable, the owner of the copyright has a number of exclusive rights, including the right to publish, copy, and prepare derivative works. Preparing derivative works includes transforming or adapting the underlying work. Where a copyright owner has authorised the preparation of a derivative work, the copyright owner will also gain ownership in the derivative work, to the extent that the underlying work was original and formed the basis of the derivative work. The copyright owner can therefore sue an unauthorised third party for using a copyright work or a derivative work, or for creating a further derivative work.
To the Batmobile!
DC Comics (“DC”) is the publisher and copyright owner of the Batman comics, dating back to 1939. The Batmobile was introduced to the comic books in 1941 as a fictional, high-tech automobile that Batman uses for transportation and crime-fighting.
While its visual appearance has changed over the years, Judge Ikuta listed its stable visual characteristics and character traits as:
- The name “Batmobile”;
- Its characteristic as Batman’s personal crime-fighting vehicle;
- Having “bat-like” external features – jet black 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”;
- Being equipped with state-of-the-art, futuristic weaponry and technology that is “years ahead of anything else on wheels” – including, for example, a Bat-phone, a Bat-scope with TV screen, a special alarm, a mobile crime lab, machine guns, and bombs of various types;
- Having “jet engines” and “flame-shooting tubes” that give the Batmobile far more power than an ordinary car.
Two different depictions of the Batmobile are particularly relevant to this dispute: that of the 1966 TV series, and that of the 1989 film. Both the TV series and the film were licensed by DC.
Here, those two Batmobiles are pictured alongside their allegedly infringing replicas:
|Batmobile Depicted in the 1989 Film||Towle Replica|
Batmobile Depicted in the 1966 TV Series
The defendant Mark Towle (“Towle”) manufactured and sold unauthorised replicas of the two Batmobiles, as shown above. His business was named “Gotham Garage” (“Gotham City” being the fictional city in which Batman is set), and he used the domain name batmobilereplicas.com to market his business.
In May 2011, DC filed proceedings against Towle for copyright infringement, trademark infringement, and unfair competition.
Towle conceded that his replicas copied the designs of the Batmobile, and that he extensively used the Batman universe, imagery and reputation to promote the sale of his replicas. After all, Towle called his replicas the “Batmobile”, used various ‘bat’ insignia, promoted the Batmobile as being Batman’s famous car, used DC’s trademarks to promote his replicas, and sold the replicas for approximately $90,000 each to “avid car collectors” most of whom “know the entire history of the Batmobile.” However, Towle still denied copyright infringement, saying that the Batmobile was “just a car” and not copyrightable as a character.
Holy copyright law, Batman!
So, is the Batmobile “just a car”, or a copyrightable character as Batman’s sidekick? In order to answer this question, Judge Ikuta applied the three criteria for copyrightable characters, and held:
- The Batmobile, throughout the DC comics, TV series, and film, has unique visual (physical) and conceptual qualities. Those qualities (listed above) include the name “Batmobile” and various “bat-like” external features.
- The Batmobile is sufficiently delineated to be recognisable as the same character whenever it appears. It has maintained distinct physical and conceptual qualities (listed above) since its first appearance in the DC comics in 1941, even though the precise nature of the bat-like characteristics have varied over time. In particular, Her Honour focused on the Batmobile’s consistent character traits and attributes: a crime-fighting automobile, sleek, powerful, manoeuvrable, and technologically advanced.
- The Batmobile is especially distinctive and contains unique elements of expression. It is Batman’s “loyal bat-themed sidekick”, unique, and highly recognisable in name, physical characteristics, and character traits. It is not merely a stock character.
Judge Ikuta therefore considered all three criteria satisfied, meaning that the Batmobile was copyrightable as a character. DC therefore owns the copyright in the Batmobile and its derivatives as shown the comics, TV series, and film.
Further, because Towle accepted that he copied the design of the Batmobile without DC’s permission, Towle undoubtedly infringed copyright by manufacturing and selling the Batmobile replicas (shown above). DC’s copyright infringement claim succeeded.
With a fitting quote from the Batman TV series, Judge Ikuta’s final paragraph reads: “As Batman so sagely told Robin, “In our well-ordered society, protection of private property is essential.”
Riddle me this, riddle me that, who's afraid of the big, black bat? 
As entertaining as Judge Ikuta’s opinion is on the surface, there is a distinct underlying feeling throughout that she’s intent on protecting the idea of the Batmobile. So, what’s wrong with that?
Copyright does not protect an idea. Rather, it protects a particular expression of an idea. The difference has already been explained above: copyright is not afforded to the idea of an alien with supernatural powers, or a magician who performs magic. Rather, there must be a concrete, distinctive, and well-defined expression of the idea: an alien with a large head and thin neck, a glowing finger, and the saying “E.T. Phone Home”.
Judge Ikuta comes very close to defining the Batmobile as an idea that could be expressed in any number of ways: “Batman’s sidekick”, “bat-themed”, “technologically advanced” and “crime-fighting vehicle”. Even when all of those ideas are combined, they may still be expressed in many different ways, as demonstrated below. They may encompass almost any vehicle driven by Batman.
Her Honour also describes a number of (in her view) conceptual similarities between the various Batmobiles, which could just as easily (in our view) be defined as distinctions. For example, she says: “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.” Are these things really alike? They may both fit into the general category of “manoeuvrability”, but that seems more like an idea than an expression of an idea.
Further, Judge Ikuta skips over the visual (physical) qualities of the Batmobile very quickly, ignoring a number of clear physical inconsistencies between the various versions of the Batmobile, as shown in the following examples from the DC comics, the TV series and the film:
Batmobile Depicted in the February 1941 DC Comic “Detective Comics #48”
Batmobile Depicted in the December 1943 DC Comic “Batman #20”
Batmobile Depicted in the 1950 DC Comic - Detective Comics #156”
Batmobile Depicted in the 1966 TV Series
Batmobile Depicted in the 1989 Film
Batmobile Depicted in the 2005 Film (not relevant to this case – pictured for interest)
Without the knowledge that all of these cars were related, we are not sure that viewers would consider them to be the same car. There are some common visual themes, including a long hood, a curved windshield, and bat wings, but it is certainly questionable whether these similarities are enough to delineate the Batmobile as a single character.
That is not to suggest that the various iterations of the Batmobile shouldn’t be protected as copyrightable characters, on the basis of their unique individual expressions. Consider, for example, the numerous unique design attributes of the 1966 Batmobile, a customised one-off 1955 Lincoln Futura (from Ford Motor Company), built entirely by hand in Turin, Italy at an estimated cost of US$250,000, then modified in 1965 specifically as the Batmobile. This is no stock automobile, and even now, this Batmobile remains iconic.
The same could be said for the 1989 Batmobile, built as a completely custom body atop a Chevrolet Impala chassis, driven by a military jet engine, and containing more weaponry than the average tank. And then, the unique “Tumbler” Batmobile, depicted in the trilogy of “Dark Knight” films beginning in 2005.
How then do we justify the Court of Appeals decision, and was it the correct result reached through the wrong means? Perhaps the Judge was influenced by the ‘flavour’ of wrongdoing throughout Towle’s actions – from his use of several Batman-related names including “Batmobile”, the business name “Gotham Garage”, and the domain name batmobilereplicas.com, his acceptance of blatant copying of the design of the Batmobile, and his use of DC’s trade marks and reputation to promote his business. However, most of these actions would be better considered in the context of trade mark infringement and unfair competition.
The decision could still be appealed to the US Supreme Court. There is also no telling how the same issue would be decided in other jurisdictions, and whether the US Court of Appeals’ decision would be persuasive elsewhere. For now, we leave you with this:
Robin: “You can't get away from Batman that easy!”
Batman: “Easily. Good grammar is essential, Robin.”
 DC Comics v. Mark Towle, no. 13-55484 F.3d (9th Cir. 2015)
 Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978)
 Olson v. National Broadcasting Co., 855 F.2d 1446 (9th Cir. 1988)
 Conan Doyle Estate v. Klinger, U.S. Supreme Court, No. 14-316.
 Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1224 (9th Cir. 2008) at 1224
 Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) at 1175
 Air Pirates, 581 F.2d at 755
 Rice v. Fox Broadcasting Co., at 1175
 Halicki Films, LLC v. Sanderson Sales & Mktg., at 1224
 Rice v. Fox Broadcasting Co.
 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)
 Universal Studios, Inc. v. J.A.R. Sales, Inc., 216 U.S.P.Q. 679 (C.D. Cal. 1982); Universal Studios, Inc. v. Kamar Indus. Inc., 217 U.S.P.Q. 1165 (S.D. Tex. 1982)
 Nichols v. Universal 45 F.2d 119, 121 (2d Cir. 1930)
 Halicki Films, LLC v. Sanderson Sales & Mktg., at 1224
 Gone in 60 Seconds (2000)
 Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1295–96 (C.D. Cal. 1995) at 1296
 Sapon v. DC Comics, No. 00 CIV. 8992 (WHP), 2002 WL 485730, at *3–4 (SD NY 2002) at *3–4
 Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206, 1216 (C.D. Cal. 1998) at 1216
 Batman: The Penguin Goes Straight (1966)
 Batman Forever (1995)
 See for a further visual example: http://www.comicbookresources.com/imgsrv/imglib/600/0/1/batmobiles-032115-1-efdb9.jpg
 Batman TV series: The Cat and the Fiddle (1966)
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.