To the Batmobile!

To the Batmobile!

Batman once told his sidekick Robin, “In our well-ordered society, protection of private property is essential.”^[1] But how far does this protection extend? On Monday, March 7^th, the United States Supreme Court decided not to review an appeal of the Ninth Circuit case testing the bounds of copyright protection.^[2] The case affirmed that Batman’s mobile crime fighter, the Batmobile, is a copyrightable character and entitled to copyright protection.^[3]

In September 2015, DC Comics, the owner and publisher of the Batman character, brought action against Mark Towle, a carmaker who sold custom cars made to look like Gotham’s most famous vehicle, for copyright infringement.^[4] The Ninth Circuit affirmed the district court’s decision that the Batmobile was entitled to copyright protection.^[5] Towle, the owner of Gotham Garage in Los Angeles, creates replicas of the Batmobile, as it appeared in the 1966 television show and 1989 movie.^[6] While Towle claimed that his car design was outside the realm of copyright protection because it was a “useful item”, the Ninth Circuit decided otherwise.^[7] The court determined that the Batmobile was “the kind of distinctive-long-running character that can itself be eligible for copyright protection.”^[8]

The copyright protection of comic book characters has been established.^[9] This protection has been extended to other iconic cars, such as Eleanor from “Gone in Sixty Seconds.”^[10] The Ninth Circuit rejected Towle’s argument that changes in the Batmobile’s appearance over the years disqualify it from copyright protection.^[11] Since Batman’s creation in 1941, the Caped Crusader’s Batmobile has evolved, but retained its core characteristics: “bat-like external features, ready to leap into action to assist Batman in his fight against Gotham’s most dangerous villains,” as well as “futuristic weaponry and technology.”^[12] Rather than requiring a strict, consistent appearance, the Batmobile must have the “distinctive character traits and attributes” it is famous for.^[13]

The Ninth Circuit formulated a three-part test for future debates on character copyright protection.^[14] The test of eligibility for copyright protection of characters requires that they (1) have “physical as well as conceptual qualities”, (2) “must be sufficiently delineated to be recognizable as the same character whenever they appear”, and (3) must be “especially distinctive and contain some unique elements of expression.”^[15]

The Ninth Circuit asserted that the Batmobile is “not merely a stock character”.^[16] The Batmobile was entitled to protection because it “maintained distinct physical and conceptual qualities since its first appearance in the comic books in 1941.”^[17] The original Batmobile, based on the 1955 Lincoln Futura concept car, was sold in 2013 for $4.62 million.^[18] Its modern counterpart appears in the upcoming film, “Batman v. Superman: Dawn of Justice”.^[19]