If you wanted to drive a car that looked like Batman’s, Mark Towle could make that happen. For about $90,0000 apiece, Towle created replicas of both the 1966 television Batmobile driven by Adam West and the 1989 movie Batmobile driven by Michael Keaton. Last Wednesday, the Court of Appeals for the Ninth Circuit affirmed that these cars infringe copyrights owned by DC Comics.
Many will be unsurprised by the decision. “Of course DC owns the Batmobile! Of course you need their permission to copy it!” And, indeed, if the Ninth Circuit’s opinion rested on the visual similarity between the (admittedly exacting) replicas and their film and television counterparts, this would be a different case.
Not an uncontroversial case, just a different one. Much of the argument at earlier stages of the litigation focused on whether the replica Batmobiles, as functional cars, were copyrightable. Matters of industrial design like the look of a car are typically not subject to copyright. However, artistic elements of commercial products can be protected to the extent they’re conceptually separable from the object’s function: carvings on a door or pictures on a quilt, for example. DC and the California district court that first considered the case pointed to elements of the Batmobiles that don’t appear to have any function: the bat-shaped phone inside, for example. But by the time the Ninth Circuit issued its opinion, the functionality of the bat-phone was no longer the central issue.
The question of whether bat-phones are copyrightable sculptural works or non-copyrightable phones became irrelevant for one simple reason: DC Comics didn’t create either the 1966 or the 1989 Batmobile designs that Towle copied. Those were created by ABC and Warner Brothers, respectively, under a license from DC that allowed them to create new works derived from its Batellectual Property, including—in the words of one 1979 contract cited by the court—“that certain conveyance known as the Batmobile.” DC’s infringement claim was therefore not based on the appearance of the cars depicted in the campy 60’s serialization or Tim Burton film. DC claimed that Towle’s cars infringed the underlying right that was the subject of its license: the Batmobile “character” as embodied in DC’s comic books.
“Because Towle produced a three-dimensional expression of the entire Batmobile character as it appeared in the 1966 and 1989 productions,” the court reasoned, “and the Batmobile character in each of those productions was derived from DC’s underlying work, we conclude that Towle’s replicas necessarily copied some aspects of DC’s underlying works.”
This is crazy.
In 1954, the Ninth Circuit ruled that Dashiel Hammet’s iconic Sam Spade character did not qualify for copyright protection. Given the modern, expansive view of copyright, it’s hard to imagine any court making a similar ruling today, but the reasoning made a tremendous amount of sense at the time. Copyright applies to creative “works”: books, movies, songs, paintings, etc. A character like Sam Spade is nothing but an abstract element within a literary work. Unless a character is such an original, thoroughly-imagined creation that copying the character really constitutes copying the story itself, there’s no reason to assume that that telling a new story with an old character (much less constructing a 3-dimensional representation of the character) constitutes copyright infringement.
In 1978, on the other hand, the Ninth Circuit distinguished cartoon and comic book characters from literary ones. In Walt Disney Prods. v. Air Pirates, the court affirmed Disney’s infringement claim against a handful of underground comics artists who were telling some unauthorized, plainly satirical stories featuring Mickey Mouse. Mickey and friends were different from Sam Spade, the court reasoned, because they appeared in a visual medium. Disney’s characters were not just abstract elements of a story; they had a physical appearance that could be copied.
In the Batmobile case, the court cited Air Pirates approvingly for the proposition that comic book characters like Batman’s car are “’more likely to contain some unique elements of expression’ than a purely literary character.” But the logic that originally underpinned that theory appeared to elude the jusices.
Remember: the “three-dimensional expressions” that Towle created were not actually Batmobiles. There’s no such thing as a Batmobile. These cars will never be driven by Batman. They will never go on adventures with Robin and Batgirl. “[A] car phone shaped like a bat that calls Commissioner Gordon is the subject of my client’s copyright,” stated DC’s attorney during oral arguments, but apparently no one handed him one of Mr. Towle’s replica phones and asked him to get Jim Gordon on the line.
The similarities between Towle’s car customizations and the fictional Batmobiles they imitate begin and end with appearance. And DC doesn’t hold the copyrights to those appearances.
The Ninth Circuit claimed that the 1966 TV Batmobile, the 1989 movie Batmobile and the various Batmobiles depicted in 76 years of DC comic books all share basic fundamental (copyrightable) characteristics, but this strains credulity. Many of the characteristics the court attributes to Batman’s car are references to its role in the fictional Batman universe: it is a “crime-fighting” car, the court pointed out, “equipped with high-tech gadgetry and weapons used to aid Batman in fighting crime” (“high-tech gadgetry” can apparently refer either to the “pair of forward-facing Browning machine guns” in the case of the movie Batmobile or else the apparently-equivalent “Bing-Bong warning bell” in the case of the TV Batmobile); it’s a car that “waits like an impatient steed for Batman so that they can “tear up the street like a cyclone” together, concluded the court, quoting some laughable early Detective Comics prose.
Again, Towle’s replicas do none of these things. They do not fight crime. They have no high-tech gadgets or weaponry (be it machine guns or bing-bong bells). They don’t act like horses or cyclones.
The court also cited certain physical characteristics allegedly common to all Batmobiles: they are “bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.” They also all have “jet engines and flame-shooting tubes.” Even if true (and I’d be hard-pressed to tell you what’s “bat-themed” about the front ends of either the Adam West or Michael Keaton Batmobiles), exaggerated fenders and curved windshields seem like pretty vague, commonplace design elements upon which to build a copyrightable character.
Lurking behind all the silly legalistic discussions of whether the Batmobile’s bing-bong bells and jet engines make it a “sufficiently delineated character” is probably a much simpler legal principle. It’s the same principle that causes many people to instinctively react “Of course DC owns the Batmobile!” Let’s face it: Towle’s real transgression was to sell cars using the name “Batmobile.” The Ninth Circuit, like much of the public, probably thinks that people just shouldn’t be able to reference the Batman comic books in any way without DC’s permission, or at least shouldn’t be able to do so in a commercial setting. Such a rule would have no basis in the Copyright Act, but it would at least be easy to apply. Instead, the court is forced to take a circuitous and disingenuous route to protecting DC’s interests, tortuously arguing that Batman’s car is not only a “character” but one so exceptionally distinctive (on the basis that it is a “crime fighting car” with “high tech gadgets”) that it overcomes the presumption that literary characters “ordinarily aren’t copyrightable.”