Ninth Circuit Court Of Appeals: The Batmobile Is A Character Under Copyright Law – New, Three-Part Test For Determining Character Protection

DC Comics v. Mark Towle, 802 F.3d 1012 (9th Cir. 2015)

The U.S. Court of Appeals for the Ninth Circuit held that the Batmobile, Batman's famous car, is subject to copyright protection as a character, independent of any specific work in which it has appeared and irrespective of whether it "lacks sentient attributes and does not speak." Fross Zelnick represented winning appellee DC Comics in the appeal.

Mechanic Mark Towle's business, which operated under the name "Gotham Garage," offered and sold knock-offs—or, in Towle's words, "replicas"—of DC Comics' Batmobile. Customers could either provide a working automobile that Towle would alter for $90,000, or purchase a do-it-yourself kit. Towle offered "replicas" of both the Batmobile that appeared in the Adam West television program in 1966 and the modernized Batmobile used in the motion picture starring Michael Keaton in 1989. Towle's finished products of both models substantially resembled the originals and incorporated many of the Bat logos and distinctive (albeit non-functional) gadgets. Towle's advertisements contained explicit references to DC Comics' trademarks and its Batman character.

The United States District Court for the Central District of California granted DC Comics' motion for summary judgment on its copyright, trademark, and unfair competition claims and held that the Batmobile is protectable as a character, notwithstanding that the character is an inanimate object. The district court held that Towle infringed DC Comics' rights under copyright in both: (i) the Batmobile as it appeared in the Batman comic books and (ii) the 1966 Batmobile and the 1989 Batmobile. As for the comics, Towle conceded that DC Comics owns all rights in the comic books, but argued that his replicas did not infringe the comic Batmobile because they were copied from later works. Towle argued strenuously that the many versions of the Batmobile over the decades, including the marked differences between the Batmobiles appearing in the earliest comic books and the 1966 and 1989 Batmobiles, undermined the similarity required to prove both an identifiable character and an infringement claim. As for the 1966 and 1989 Batmobiles, Towle conceded that his replicas were close copies and therefore infringing, but argued that DC Comics did not own rights in those works. After the district court ruled, the parties executed stipulations such that Towle could appeal. In Towle's appellate brief, he largely conceded the...