A furious dispute set out when California native and owner of Gotham Garage, Mark Towle was sued by DC Comics’ parent company Warner Bros. Entertainment, Inc. The District Court granted summary judgment against Towle for making replicas of Batmobile, a regularly featured character in DC Comic books. The suit was thereafter appealed. The Ninth Circuit ruled that it was “clear that that Batmobile is a copyrightable character.” Unconvinced by this ruling, Towle has now filed a writ of certiorari with the Supreme Court of the United States asking the Court to review the Ninth Circuit decision.
The Batmobile is a pop culture icon. Since its appearance in DC Comics back in 1939, the Batmobile has drastically altered its manifestation. Once illustrated as a red convertible sedan and referred merely as Batman’s “car”, the 21st century “Batmobile” is a world class conveyance of futuristic traits that one can only imagine in an automobile. The present-day Batmobile is a powerfully armored, technologically advanced, highly maneuverable bat like motor vehicle capable of helping Batman eradicate even the most formidable villains of Gotham City.
Since its mainstream popularity, many have attempted to replicate the Batmobile. For instance, George Barris, in 1960s built one for ABC series Batman, basing his designs on a 1955 Lincoln Futura. Later in 1989, Anton Furst made a model for the Batman franchise and assigned his rights to Warner Bros. Subsequently, in 2008, Nathan Crowley and Christopher Nolan designed the modernized Batmobile as depicted in the Batman movies of today.
Similarly, Towle, a car mechanic by trait, began designing customizable Batmobiles or “Gotham City Cruisers” for his customers. When sued by Warner Bros., Towle contended that the replica cruisers he had designed over the past 12 years were not based on any comic book version of DC Comics. Rather, Towle claims that the replicas were based on 1966 and 1989 televised Batman show and movie. Towle further argues that
“Congress made it very clear, when it enacted the Copyright Act, that automobiles and other 'useful items' are not copyrightable. Moreover, the U.S. Copyright Office has indicated, quite unequivocally, that automobile designs are not copyrightable.”
However, not moved by Towle’s arguments, the Ninth Circuit stated,
“The Batmobile, as it appears in the comic books as well as in the 1966 [Batman] television show and the 1989 motion picture, displays consistent, identifiable character traits and attributes.”
In its rationale, the Ninth Circuit also noted that characters like Mickey Mouse, Batman, James Bond are always protected no matter what the actor who portrays the character looks like. Accordingly, the Court’s decision incorporated a three-part test to determine whether characters are eligible for copyright protection:
- They must generally have “physical as well as conceptual qualities;
- They must be “sufficiently delineated” to be recognizable as the same character whenever they appear; and
- They must be “especially distinctive” and “contain some unique elements of expression.”
Similar to this ruling, in 2008, the Ninth Circuit had also held that “Eleanor”, the iconic muscle car from "Gone In Sixty Seconds" was also eligible for copyright protection.
Now, in his petition for writ of certiorari to the Supreme Court of the United States, Towle vehemently states that even if there was an exception to the Federal Copyright Law for a character in a creative work, DC Comics has created over 100 Batmobiles with “very different characteristics and no consistent, widely-identifiable traits”, thus stretching the definition of “character” and what can be protected therein.
Specifically, the Supreme Court has been petitioned to review the following:
- whether a court can judicially create a subject of copyright that was excluded by Congress when the Copyright Act was enacted,
- whether an automobile that lacks consistent character traits can be protected under the Act, and
- whether “substantial similarity” standard used in copyright infringement determination should have been required.
For further details, the case can be reviewed as Mark Towle v. DC Comics, case number 15-621, in the United States Supreme Court.