“Holy Unfavourable Judgment Batman”…Batmobile found to be a protectable character

Can you guess the movie character from the following description: “…oddly-shaped head and facial features, squat torso, long thin arms, and hunched-over posture”. Got it? It makes sense when you know the answer (E.T.). But which movie character fits the description “swift, cunning, strong, and elusive?”

Apparently, the Batmobile.

Digital_Third_Eye / Foter.com / CC BY-ND

DC Comics has succeeded in its court proceeding action against Mark Towle (trading as Gotham Garage) for copyright and trademark infringement, and unfair competition. We have previously posted on Towle’s unsuccessful motion to have these proceedings dismissed. As you may recall, Towle was in the business of arming Batman fans with DIY-kits for turning their Honda Civics into Batmobiles, the nerds’ pre-emption of “Pimp my Ride”. Towle also sold full replicas of two versions of the Batmobile: the Batmobile as it appeared in the 1966 “Batman” television series (with Adam “Pure” West starring as Batman), and the Batmobile from the 1989 “Batman” movie, with Jack Nicholson playing this author’s favourite incarnation of the Joker.

Towle didn’t attempt to defend the trademark infringement claims, freely admitting he had copied and used the famous Batman symbol and term “Batmobile” in his products, and on his websites. Also, Justice Lew had no problem finding that Towle’s products breached unfair competition laws, as there was clear evidence of many customers being confused about the source of the cars and body-kits. BAM!

But things got interesting on the copyright infringement claim. Towle’s defence was that there could be no copyright in the actual Batmobiles themselves. POW! In fact, Towle had waited until the design patent for the 1989 Batmobile had expired before he had started selling his products, after incorrectly concluding there could be no copyright in the Caped Crusader’s car.

Unfortunately for Towle, the court found that the Batmobile could be copyright protected in its own right (as opposed to its expression within the comics, television show or movies) if DC Comics could establish that the Batmobile was its own character. To decide this question, the court considered a case in which Disney characters had been used without authorisation in “counter-culture” comics. In that instance, the court found that it was more likely that a comic book character could be protected than a literary character, because the former have “physical as well as conceptual qualities…” whereas literary characters “may embody little more than an unprotected idea”. Take that, Jane Austen. BAP!

Presiding Justice Lew found that the correct test for copyright protection of characters was stated in Rice v Fox Broadcasting as being whether or not the character could be said to be “especially distinct” with “displayed consistent, widely identifiable traits”.

Towle argued that the Batmobile was not copyright protectable because it was only Batman’s transport and not a character in any sense. Justice Lew rejected this argument, finding that the issue was whether or not the relevant object “conveys a set of distinctive characteristics”. Justice Lew, who one suspects might have read a few Batman comics in his day, accepted that the Batmobile was its own character worthy of individual copyright protection: “The Batmobile is central to Batman’s ability to fight crime, and appears as Batman’s sidekick, if not an extension of Batman’s own personality.” SOK!

His Honour also found that the Batmobile would be protectable as a “pictorial, graphic and sculptural work”. The court found that the components of the Batmobile that could be removed without affecting its utilitarian value as a car, including the bat-sculpted hub-caps and bat tailfin, were all copyright protected. Further, his Honour rejected Towle’s arguments that the design of a car could not be protected under copyright law, stating that “…the Defendant did not copy the design of a mere car; he copied the Batmobile character”. Contrast this outcome with the UK decision in which the court rejected copyright protection for the “Star Wars” stormtrooper costumes.

This judgement suggests some interesting questions about copyright protection for characters in different mediums: did Austen’s Elizabeth Bennet only become protectable as a character once Keira Knightley had brought her to the big screen? If you reduced a Manga comic to a novel, would the characters lose their distinctiveness, and thus, their entitlement to copyright protection? Are Iron Man’s suit, Aladdin’s rug, and Knight Rider’s Kitt in fact all characters? You be the judge.

Fortunately, for Batman fans with plenty of cash and no sense of shame, you can actually purchase a licensed replica of the 1966 Batmobile. And for those familiar with the kooky antics of the 1966 television show, the full list of Robin’s wacky “Holy (Smokes) Batman” comments (most of which suggest the “writers” were one

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