from the say-what-now? dept
This has been quite a week for wacky copyright issues. The latest is that the 9th Circuit (which specializes in nutty copyright cases, apparently) has ruled that the very concept of the Batmobile can be covered by copyright and that copyright is held by DC Comics. The issue came about because a guy named Mark Towle has an operation called Garage Gotham, where he would produce “Batmobiles” for people who want their own. DC Comics sued, claiming copyright and trademark infringement. The lower court said this was legit, and the appeals court has now agreed — saying that the Batmobile itself is effectively its own character and thus it can have a copyright in that “character.” As with other copyright cases about the copyright on “characters” you would think that this shouldn’t matter, because of the whole “idea/expression” dichotomy that says the copyright only is supposed to apply to the specific expression, rather than the general idea (i.e., you can copyright a story about time travel, but not the idea of time travel).
And yet… for whatever reasons, courts have decided that “characters” can be covered by copyright. And now that takes us to this latest ruling, issued by Judge Sandra Ikuta, who appeared to recognize that it was going to get attention, as it kicks off with the joke that plenty of uncreative journalists might stick in their headlines:
Holy copyright law, Batman! indeed. As the court notes — and as you’re probably aware — the Batmobile has changed quite a bit over the years, which raises more questions about what any copyright on the Batmobile itself might cover. For his part, Towle said that there couldn’t be any copyright on the vehicle (and that the suit was barred by laches — i.e., DC took too long to sue). Either way, the court says that the Batmobile is a character and that some characters within entertainment deserve copyright protection, as per prior court rulings. And, the court notes that this is not the first time someone has claimed copyright on a car as a character in a movie:
We have previously determined that an automotive
character can be copyrightable…. In Halicki, we considered whether ?Eleanor,? a car
that appeared in both the original 1971 and 2000 remake
motion picture Gone in 60 Seconds, could be entitled to
copyright protection as a character…. Considering Eleanor?s persistent attributes in both the
original and remake of Gone in 60 Seconds, we concluded
that Eleanor met some of the key factors necessary to qualify
for copyright protection…. We first noted that
Eleanor was more like a comic book character than a literary
character given Eleanor?s ?physical as well as conceptual
qualities.? We also stated that Eleanor ?displays
consistent, widely identifiable traits and is especially
distinctive.? (alteration, citation, and internal quotation
marks omitted). We gave several examples of these traits.
First, we noted that ?[i]n both films, the thefts of the other
cars go largely as planned, but whenever the main human
character tries to steal Eleanor, circumstances invariably
become complicated.? Second, we noted that in the
original, ?the main character says ?I?m getting tired of
stealing this Eleanor car,?? and in the remake ?the main
character refers to his history with Eleanor.? Despite this
evidence of distinctive traits, we were sensitive to the fact
that the district court had implied that Eleanor was deserving
of copyright protection, but had not directly examined this
?fact-intensive issue.? Therefore, we remanded the issue
to the district court to decide in the first instance.
And, the court notes, it didn’t matter that the car in the two films was totally different: “Halicki put no weight on the fact that Eleanor was a
customized yellow 1971 Fastback Ford Mustang in one film,
and a silver 1967 Shelby GT-500 in another.” It then points to a variety of other cases in which characters have been declared covered by copyright, including James Bond, Godzilla and Batman himself. From these cases, the court creates a “three-part test” for determining if a character deserves 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…. Considering the character as it has
appeared in different productions, it must display consistent,
identifiable character traits and attributes, although the
character need not have a consistent appearance.
Third, the character must be ?especially
distinctive? and ?contain some unique elements of
expression.? … It cannot be a stock
character such as a magician in standard magician garb…. Even when a character lacks sentient
attributes and does not speak (like a car), it can be a
protectable character if it meets this standard.
Using that test, not surprisingly, the court finds that the very concept of the Batmobile deserves copyright protection.
because the Batmobile has appeared graphically in comic
books, and as a three-dimensional car in television series and
motion pictures, it has ?physical as well as conceptual
qualities,? and is thus not a mere literary character….
I recognize that the court is building off of caselaw here, but it’s difficult to see where or how this fits under the actual law. It seems like a totally made up standard.
And then we get to the big test: is the Batmobile, even in all its different designs and forms, “recognizable” as a single “character.”:
Second, the Batmobile is ?sufficiently delineated? to be
recognizable as the same character whenever it appears… As the district court determined, the
Batmobile has maintained distinct physical and conceptual
qualities since its first appearance in the comic books in 1941.
In addition to its status as ?a highly-interactive vehicle,
equipped with high-tech gadgets and weaponry used to aid
Batman in fighting crime,? 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.
This bat-like appearance has been a consistent theme
throughout the comic books, television series, and motion
picture, even though the precise nature of the bat-like
characteristics have changed from time to time.
The Batmobile also has consistent character traits and
attributes. No matter its specific physical appearance, the
Batmobile is a ?crime-fighting? car with sleek and powerful
characteristics that allow Batman to maneuver 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!? Like its comic
book counterpart, the Batmobile depicted in both the 1966
television series and the 1989 motion picture possesses ?jet
engine[s]? and flame-shooting tubes that undoubtedly give
the Batmobile far more power than an ordinary car.
Furthermore, the Batmobile has an ability to maneuver that
far exceeds that of an ordinary car. 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.?
Equally important, the Batmobile always contains the
most up-to-date weaponry and technology. At various points
in the comic book, the Batmobile contains a ?hot-line
phone . . . directly to Commissioner Gordon?s office?
maintained within the dashboard compartment, a ?special
alarm? that foils the Joker?s attempt to steal the Batmobile,
and even a complete ?mobile crime lab? within the vehicle.
Likewise, the Batmobile in the 1966 television series
possesses a ?Bing-Bong warning bell,? a mobile Bat-phone,
a ?Batscope, complete with [a] TV-like viewing screen on the
dash,? and a ?Bat-ray.? Similarly, the Batmobile in the 1989
motion picture is equipped with a ?pair of forward-facing
Browning machine guns,? ?spherical bombs,? ?chassismounted
shinbreakers,? and ?side-mounted disc launchers.?
Because the Batmobile, as it appears in the comic books
as well as in the 1966 television show and 1989 motion
picture, displays ?consistent, identifiable character traits and
attributes,? the second prong of the character analysis is met
Yes, “always containing the most up-to-date weaponry and technology” is somehow a character trait of the Batmobile. But that seems… weird. I mean whatever car James Bond gets in every Bond film has a similar trait. Does that mean the Bond cars are also covered by copyright.
And, again, how the hell do you settle this with the idea/expression dichotomy? Copyright is for specific expression and not general ideas, and yet this entire ruling is basically saying the idea of the Batmobile is covered by copyright.
Third, the Batmobile is ?especially distinctive? and
contains unique elements of expression. In addition to its
status as Batman?s loyal bat-themed sidekick complete with
the character traits and physical characteristics described
above, the Batmobile also has its unique and highly
recognizable name. It is not merely a stock character.
In short: give your car a name, and you can convince a court that it is a character deserving separate copyright protections. The court tosses out Towle’s defense that because the Batmobile constantly changes in appearance that you can’t give the general “Batmobile” copyright power, but the court says (somewhat questionably) that it’s no different than the fact that James Bond sometimes changes clothes. Yes, really.
The changes in
appearance cited by Towle resemble costume changes that do
not alter the Batmobile?s innate characteristics, any more than
James Bond?s change from blue swimming trunks (in Casino
Royale) to his classic tuxedo affects his iconic character.
Here’s the thing: I could pretty much see if the court had decided simply that each of the individual designs of the Batmobile in the TV series and the movie deserved their own copyright for the decorative, non-useful elements of the automobile, and then found that the work infringed on those elements. That seems like a more reasonable argument (if a silly one, as I’ll get to in a moment). But that’s not what the court is ruling. It’s saying specifically that the very idea of the Batmobile is covered by copyright, and thus even if you were to design a Batmobile that met the basic criteria set out above, but which looked nothing like an actual depiction of the Batmobile in the comics, TV or movies, you could still be infringing on the copyright. That seems messed up.
It strikes me as bizarre that the court never even mentions the whole idea/expression dichotomy, which is supposed to be a key part of copyright law.
Now, even if we leave all this aside and say that it’s fine for DC to hold such a copyright, there’s a separate question: should it be going after this guy? And that seems pretty ridiculous as well. The people buying these replica cars are huge fans of the Batman TV series or movie. The reason they’re buying these replica vehicles is to show off that fandom and to freely promote the original work, drawing much more attention to it. Unless DC is magically planning to get into the car licensing business (really?), it’s hard to see why it feels the need to step in and shut this down, other than to piss off some Batman superfans (with money to burn). Is that really a wise use of DC’s legal resources?
Filed Under: 9th circuit, batman, batmobile, character, copyright, expression, idea, idea expression dichotomy, mark towle
Companies: dc comics