Mark Towle owns Gotham Garage, which manufactures and sells replicas of automobiles featured in famous motion pictures and television programs. Gotham Garage specifically sold fully constructed cars as well as kits which allow customers to modify their car to look like the Batmobile, and advertised its replicas as “Batmobiles” while marketing its business via the domain name batmobilereplicas.com.
In May 2011, DC Comics filed suit against Towle for copyright infringement, trademark infringement and unfair competition arising out of Towle’s marketing and sale of Batmobile replicas. Towle countered that the Batmobile – at least as it appeared in the famous 1966 television series and the 1989 motion picture, the main inspirations for Gotham Garage’s designs – was not subject to copyright protection. The Batmobiles look different. And they’re cars.
DC Comics owns the rights of the Batman comics, which first appeared in 1939 and began featuring the Batmobile in 1941. Since then, the Batmobile has functioned as the Caped Crusader’s primary mode of transportation while battling baddies in Gotham City.
In 2013, the district court, in DC Comics v. Towle, 989 F. Supp. 2d 948 (C.D. Cal. 2013), held that the Batmobile was a “character” entitled to copyright protection. The district court’s decision was informed by several factors, including: (1) the Batmobile “is known by one consistent name that identifies it as Batman’s personal vehicle”; (2) the Batmobile has several consistent traits, including its “high-tech gadgets and weaponry,” “bat-like motifs,” and jet black color; and (3) the Batmobile is always depicted as “swift, cunning, strong and elusive” and is portrayed as “Batman’s sidekick, if not an extension of Batman’s own persona.” The fact that the physical traits of the Batmobile have changed over time was less important to the district court than the overall, consistent impression the Batmobile has created over time. Towle appealed.
On September 23, 2015, a three-judge panel of the Ninth Circuit, in an opinion authored by Judge Sandra Ikuta, affirmed the district court’s decision and held that the Batmobile is entitled to copyright protection as a sufficiently distinctive “automotive character” of the Batman comic books, television series, and motion pictures. The Ninth Circuit noted that while the Batmobile “has varied in appearance over the years,” that its name and key characteristics, such as (1) serving as Batman’s personal crime-fighting vehicle, (2) possessing bat-like external features, (3) seemingly perpetual readiness “to leap into action to assist Batman in his fight against Gotham’s most dangerous villains,” and (4) futuristic weaponry and technology, have all remained constant. This renders the Batmobile a “sufficiently distinctive” element of the overall Batman world, to which copyright may extend. Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1224 (9th Cir. 2008). In order to be sufficiently distinctive, and worthy of copyright protection, a “character” must be “sufficiently delineated” and display “consistent, widely identifiable traits.” Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F. Supp. 2d 1206, 1215 (C.D. Cal. 1988) (discussing Godzilla). The court noted, for example, that a “masked magician ‘dressed in standard magician garb’ whose role ‘is limited to performing and revealing the magic tricks’” would not be an especially distinct character differing from an ordinary magician in a manner that warrants copyright protection.
Furthermore, the court noted that there is precedent for considering automobiles to be “characters” in and of themselves. In Halicki, the Ninth Circuit considered whether “Eleanor,” a car that appeared in the original and the remake of Gone in 60 Seconds could be entitled to copyright protection. Because Eleanor had conceptual as well as physical qualities, this made the car “more” like a character. Across the original and the remake Eleanor also displayed consistent, widely identifiable traits making it especially distinctive.
It also didn’t hurt that the car had a name.
The Ninth Circuit likened the Batmobile dispute to other disputes over characters such as James Bond and Godzilla, whose physical appearance changes over time but whose distinctive elements remain consistent. On the basis of this case and prior rulings, the Ninth Circuit determined that a three-part test exists for “determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection.” First, the character must generally have “physical as well as conceptual qualities.” Second, the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. Third, the character must be “especially distinctive” and “contain some unique elements of expression” (unlike the magician noted earlier).
The Ninth Circuit determined that the Batmobile satisfied this test. In doing so, it wasn’t the Batmobile’s super-charged motor, twin jets of flame, reverse thrust rockets, Browning machine guns, or even its direct line to Commissioner Gordon’s office that won the day, but copyright.
The Towle case serves as an important reminder that aspects of a work need not be sentient or even able to communicate in order to be “sufficiently distinctive” in a manner that entitles them to copyright protection. The case also serves as an important reminder that whether a particular work is subject to copyright protection is a mixed question of fact and law subject to de novo review, meaning that a panel of judges, rather than a jury, may consider themselves well-equipped to determine as a matter of law if a particular character is especially distinctive and entitled to copyright protection.