Feb 1, 2016

Only the Joker Left to Play in Batmobile Copyright Dispute

In the US a mechanic who made Batmobiles has petitioned the highest court in the US, the Supreme Court, to review his dispute with Warner Bros owned DC Comics ("DC").

Background

In September 2015 the 9th Circuit Court of Appeals held that the Batmobile is sufficiently distinctive to be protected as a work of authorship.  It held that the car was an "automotive character" capable of being protected under US copyright law.

Mr Mark Towle, whose creations sell for $90,000 each, was sued by DC for breach of their copyright over Batmobiles featuring in the 1960's TV show and 1989 film production.  He argued that the Batmobile was merely functional and a useful article rather than being an artistic object.  The Court disagreed commenting that:

""Here, we conclude that the Batmobile character is the property of DC, and Towle infringed upon DC's property rights when he produced unauthorized derivative works of the Batmobile as it appeared in the 1966 television show and the 1989 motion picture."

Judge Sandra Ikuta relied on a previous decision which considered the car "Eleanore" in the Nicholas Cage film Gone in 60 Seconds.  In that 2008 decision it was decided that a character may be protectable if it has distinctive character traits and attributes.

A full copy of Judge Ikuta's decision in DC Comics v Mark Towle and DBA Garage Gotham is available here.

Appeal Action

Mr Towle argues that the Batmobile does not deserve copyright protection following the earlier decision of the 9th Circuit Court of Appeals.

In a petition filed on Friday, the justices of the Supreme Court are asked to consider three questions:

Whether a court may judicially create a subject of copyright that was specifically and expressly excluded by Congress as such when Congress enacted The Copyright Act, thus circumventing the clear mandate of Congress and the U.S. Copyright Office;
Whether an automobile that does not display any personality traits or any consistent and widely-identifiable physical attributes can be separately protected by copyright as a "character"; and
Whether a determination of substantial similarity of protected expression must be made in a copyright case, independent of proof of copying.

Mr Towle also claims that in addressing his replicas, the Courts passed by an analysis over specific automobile parts to figure out what has been copied. He thinks that if analysed in this way, a court would discover much of the Batmobile was undeserving of protection or is not actually owned by DC. The remainder should form the basis of a review of 'substantial similarity'. In other words, a court might hold a jet-engine to be utilitarian, and be left with something like a bat-themed light to determine whether there has been copying.

According to The Hollywood Reporter, the chances the Supreme Court picks up this case are, "...probably more slim than Christian Bale reprising his role as Batman" Ton the basis that the Supreme Court grants a very small number of the thousands of petitions it receives each year.

 

Posted by: in: Case Law, Copyright, News

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