DC Comics has never been ashamed about standing up for truth and justice. Nor is it a stranger to copyright disputes.
This time, the alleged villain is Mark Towle of Gotham Garage, who has been selling custom Batmobiles and “unlicensed replica vehicle modification kits” — apparently to such cognoscenti as Justin Bieber. DC Comics decided that there must be some kind of law against this and brought the matter before a Californian District Court Judge. Although the case has yet to be fully heard, Judge Ronald Lew has rejected an attempt by Towle to dismiss the claim on the basis that no copyright could exist in Batmobiles.
Towle’s argument was based on sections of the US Copyright Act that excluded “useful articles” from copyright protection. Towle — obviously a man who knows his Batman — sought to demonstrate that Batmobile were “useful articles” by referring to a previous Gotham City case (outlined below) that described automobiles as a clear example of a useful article. Judge Lew, however, rejected Towle’s argument, explaining that the “useful article” exception does not apply to artistic elements that can be identified separately from the utilitarian aspects of the article and that, therefore, copyright could exist in the additional aesthetic elements of Batmobiles. A copy of the ruling is available here.
How would this case run in Australia? Well, to be protected by copyright in Australia, DC Comics would have to demonstrate that the Batmobile fell into one of the categories of works recognised by the Copyright Act: in this case, probably as a work of artistic craftsmanship. On the one hand, the recent UK “Stormtrooper” cases might suggest that film props will struggle to be classified as works of artistic craftsmanship, as their purpose is not “to appeal to the aesthetic” but “to give a particular impression” (see our most recent post one these cases here). However, the leading Australian authority on this issue, Burge v Swarbrick, indicates that whether an object is a work of artistic craftsmanship will depend on the extent to which its form “is unconstrained by functional considerations”. So, assuming that the distinctive features of DC Comic’s Batmobiles are not dictated by legitimate aerodynamic considerations, DC Comics would seem to have a good case.
And that other Gotham City case? In 1994, an artist called Andrew Leicester sued Warner Brothers in relation to their use of Los Angeles’ 801 Figueroa Tower to depict the Second Bank of Gotham in the film “Batman Forever”. Leicester alleged that a series of works he had created in the courtyard of 801 Figueroa Tower, including a number of gates and towers, were sculptures existing independently of the building and that, therefore, their reproduction in “Batman Forever” had infringed his copyright.
The US Court of Appeals, however, accepted Warner Brothers’ argument that the gates and towers were part of the larger architectural work of 801 Figueroa Tower. This meant that their depiction in “Batman Forever” fell within an exception which provides that a depiction of an architectural work in a film does not constitute copyright infringement. A copy of this decision is available here.
Perhaps surprisingly, film studios have it even easier under Australian copyright law, which allows not only for buildings but also for sculptures situated in public places to be represented in a film without constituting copyright infringement (see sections 65 and 66 of the Copyright Act).