Batmobile To The Rescue: Clarifying The Reach Of Copyrights In Characters

In holding that the Batmobile is a protectable copyrighted character, the Ninth Circuit has provided some needed clarification to the test for determining the copyrightability of a nonliterary character.

DC Comics owns the copyright in the Batman comic books. It licensed the Batman "literary property" consisting of the Batman comic book, including the characters in the comic books, for use in the 1966 Batman television series and the 1989 Batman film. Towle operated a specialty garage in which he created replicas of the Batmobile as depicted in the television series and film. DC Comics sued Towle for infringement of its copyright in the comic books.

At the outset, the Ninth Circuit held that the "Batmobile, as it appeared graphically in comic books, and as [a] three-dimensional car in television series and motion pictures, was [an] especially distinctive character entitled to copyright protection." The court acknowledged that the majority of traditional literary characters may not "ordinarily" rise to the level of independent copyrightability, but that characters from visual media such as comic books often merit protection because they are "'more likely to contain some unique elements of expression' than a purely literary character." However, "copyright protection is available only 'for characters that are especially distinctive.'"

In reviewing its own and other circuit court precedents, the court distilled a three-part test for determining whether a visual character warrants independent copyright protection: (1) the character must have "physical as well as conceptual qualities"; (2) the character must be "sufficiently delineated" to be recognizable across depictions; and (3) the character must be "especially distinctive," with some unique elements of expression. Applying these criteria, the court concluded that the Batmobile satisfied each prong. First, it was depicted graphically in comic books and three-dimensionally on television and in film. Second, it has recognizable "character traits and attributes." It has been consistently depicted as a sleek, powerful and crimefighting car. Although there are different...