Replica Batmobile on Trial for Copyright, Trademark Infringement
|Written by Corinne Kerston
Posted: Jan 19, 2013 @ 10:30 am
There’s something to be said for old school cool. The original Batmobile from the 60’s television show, with sleek design and red detailing, is going up for auction later this month. Unfortunately, in the midst of this superhero coolness, the Batmobile namesake owners are doing battle over replicas of this very car.
DC Comics, a subsidiary of Warner Bros., is pushing a lawsuit against California custom paint and auto body shop, Gotham Garage. Owned and operated by Mark Towle of Santa Ana, Gotham Garage specializes in customizing replicas of the various Batman vehicles. To date, Towle has sold two replicas of the original Batmobile, which was designed by a legend in the custom car business, George Barris. The cars have sold for $80,000 and $90,000, and Towle has also sold another replica that was based off the Batmobile version that was featured in the 1989 movie.
This lawsuit started nearly 2 years ago, when Warner Bros. claimed that Towle’s business was violating copyrights and trademarks that are owned by DC Comics. Both sides have been arguing their case, with DC Comics claiming that the copyright protection includes not only the actual Batmobile, but also the overall look and feel of the car.
Backing up his business, Towle refuses to give in claiming that, “this is a very important case that has far-reaching implications. While it is true that this case is ostensibly about the Batmobile, which some may find to be trivial, the fact is that the issues that will be decided will have a significant impact on automobile makers and manufacturers.”
Batman was introduced to the world in 1939 in a comic books series called Detective Comics. In 1940, he earned his own comic book title; and a year later, acquired his gadget-filled ride. Since the induction of the first Batmobile, the vehicle has gone through numerous transformations. In the 1960s, Barris built the now-famous real-life model for the TV series. Over the years, Batman and his car have gone through different looks, but remain fan favorites. Live-action movies produced by Warner Bros. have contributed to the continuing popularity of the character.
In official legal papers, DC Comics’ Vice President and deputy general for counsel for intellectual property Jay Kogan stated that the DC Comics has reserved trademark, copyright and merchandising rights to the aforementioned car.
DC Comics attorney J. Andrew Coombs argues that the Batmobile includes trademarks that have secondary meanings, and by Towle selling an unauthorized replica, he is likely to confuse consumers as to whether his cars are DC Comics products or not.
Coombs also claims that the Batmobile is a part of the entire Batman franchise, which in itself is protected by copyright. In legal papers, Coombs states:
“These are not merely vehicles with customized paint and trimmings; these are interactive, highly advanced automobiles equipped with futuristic gadgetry and aesthetics uncommon to vehicles of their time. The Batmobile Vehicles are never referred to simply as ‘cars’ but rather always by name — BATMOBILE. They interact with the Batman and Robin characters and serve as integral parts of the stories being told by the respective comic books, television programs and motion pictures in which they appear.”
Towle’s stands strong in his position that the vehicles aren’t subject to copyrighting. According to his argument:
“It is black letter law that useful articles, such as automobiles, do not qualify as ‘sculptural works’ and are thus not eligible for copyright protection. However, despite this clear, bright line standard, DC believes that there is an exception to this rule. The exception being that if a different version of the vehicle (not even the same version that Defendant sells) once appeared in a comic book, then the rule does not apply. The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.”
The judge must decide whether or not the design elements that Towle is mimicking are more than just elements of any automobile. Just as you can’t copyright a basic car hood but you can possibly copyright a unique pattern on that hood, the question here is whether the Batmobile has elements than can be conceptually separated from the functionality of the car.
DC Comics argues that they answer is yes, and of course, Towle argues no. Towle claims that:
“DC may argue that they are not seeking protection for the entire design of the vehicle, only the separable, non-functional, artistic elements. This is a lie. Because when asked which parts of the car it considered to be separable, non-functional and artistic, it did not limit its’ answers to one or two design features. Instead, DC listed every visible part of the car from the design of the front grill, to the fenders, to the wheels, to the fins, the cockpit, and the exhaust pipe. DC even claims that the color of the Batmobile is copyrightable.”
A hearing scheduled for January 30th could possibly end this battle. Both Warner Bros. and DC Comics have made millions of the Batman franchise and are understandably protective of it. On the other hand, Towle is standing his ground against them and doesn’t seem to want to back down. This case could possibly end with a decision in favor of either side, or the case could go to trial. We shall have to wait to see what the judge says.