Josh Henderson

Holy copyright law, Batman!

Josh Henderson

28 September 2015

Copyright

The caped crusader’s preferred mode of transport, the Batmobile, is pretty special. Not only is it equipped with incredible weaponry to help Batman in his fight against Gotham’s most dangerous villains – it is also protected in the US by copyright as a character.

 

DC Comics v Mark Towle

 

In the United States Court of Appeals for the Ninth Circuit decision of DC Comics v Mark Towle, see here, Judge Ikuta confirmed that copyright subsisted in the Batmobile as a character, and that copyright had been infringed by the defendant, who made and sold replicas as part of his business at Gotham Garage. POW! Thwack!

 

The case focused on two versions of the Batmobile, one from the TV show starring Adam West in 1966 and then from the motion picture starring Michael Keaton in 1989.  The authentic Batmobiles, and the replicas, are set out below:

 

 

Mr Towle made the replicas, by copying the designs of the Batmobile (although not every feature).  He then sold them to avid collectors for about USD$90,000 each. Holy mark-up, Batman!

 

DC Comics alleged that its copyright (and other IP rights, such as its trade mark) had been infringed.  In a summary judgment, the District Court held that the ‘Batmobile’ character was entitled to copyright protection and that it had been infringed. That judgment was appealed.

 

Holy smokes, Batman! Is there really copyright in a character?

 

In Australia, a ‘character’ receives no discrete copyright protection.[1]   Rather, a literary, non-graphic character can only be a literary work in itself, or a component of a literary work. Graphic characters fair better as artistic works. An example is Popeye, as in King Features Syndicate Inc v Kleeman Ltd [1941] A.C. 417, the plaintiff obtained injunctions restraining the defendants from importing and selling ‘Popeye’ dolls and broaches, on the basis that they were reproductions in a material form.

 

The position is different in the US, which appears to regard literary characters as independently copyrightable.  The Court in DC Comics explained that not every comic book, television, or motion picture character is entitled to copyright protection.  Rather, that protection is only available for “characters that are especially distinctive”.  In assessing this, the Court considered a three-part test:

 

1. The character must generally have “physical as well as conceptual qualities”.

 

As the Batmobile has appeared graphically in comic books, and as the three-dimensional car in the TV series and movie, it is physical and is not a mere literary character.

 

The Batmobile has also maintained distinct physical and conceptual qualities since its first appearance in the comic books in 1941. In particular, the Batmobile is almost always bat-like in appearance, 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 on the vehicle.

 

It also has the most up-to-date weaponry and technology including, of course, the “hot-line phone … directly to Commissioner Gordon’s office”.

 

2. The character must be “sufficiently delineated” to be recognisable as the same character whenever it appears.

 

The Court found that no matter its specific physical appearance, the Batmobile is a crime-fighting car with sleek and powerful characteristics that allow Batman to manoeuver quickly while he fights villains.

 

In the comic books, the Batmobile is described as waiting “[l]ike an impatient steed straining at the reins . . . shiver[ing] as its super-charged motor throbs with energy” before it “tears after the fleeing hoodlums” an instant later.

 

Elsewhere, the Batmobile “leaps away and tears up the street like a cyclone” and at one point “twin jets of flame flash out with thunderclap force, and the miracle car of the dynamic duo literally flies through the air!” As the Court points out, this specific occasion causes Robin to exclaim “Whee! The Batplane couldn’t’ do better!”.

 

3. The character must be “especially distinctive” and “contain some unique elements of expression.”

 

The Court found that the Batmobile was Batman’s loyal bat-themed sidekick, with a unique and highly recognisable name.

 

Accordingly, the Court held that the Batmobile is a character that qualifies for copyright protection.

 

Towle’d up – copyright infringement

 

US law is different to Australian copyright law, as it contains a ‘derivative right’ which is broader than the rights under our Copyright Act. In Australia, you could rely on the ‘adaptation right’, which is relatively narrow and does not apply to artistic works. Alternatively, you could consider the reproduction right, if there has been a reproduction of the literary or artistic work in a material form.

 

In the US, the owner of a copyright has the exclusive right “to prepare derivative works” based on the original work. The Court concluded that DC Comics owned copyright in the Batmobile character, as it was expressed in the 1966 and 1989 productions, at least to the extent those productions drew on the underlying work (ie, the comic book). As Towle had produced a 3D expression of the entire Batmobile character, the Court found that he had copied a substantial amount of the underlying works.

 

Holy hole in a donut, Batman![2]

 

Towle’s attorney is quoted as saying: “Characters exist in comic books and movies and TV shows,” he said. “They don’t exist in the real world. In the real world, it’s just a car.”

 

The Court of Appeals clearly disagreed, saying: “As Batman so sagely told Robin, `In our well-ordered society, protection of private property is essential.‘”[3]



[1] See McKeough, J ‘Character Merchandising: Legal Protection in Today’s Marketplace’ (1984) UNSW Law Journal, 97 and  McCutcheon, J.L. ‘Property in Literary Characters: Protection under Australian Copyright Law’ (2007) European Intellectual Property Review 29:4, 140.

[2] You can find a list of Robin’s quotable quotes from the TV series here: https://en.wikipedia.org/wiki/List_of_exclamations_by_Robin.

[3] Batman: The Penguin Goes Straight, (Greenway Productions television broadcast 23 March 1966).