STACY J GROSSMAN

Copyright Reigns in Gotham City


by Christoffer Stromstedt,

 

In time for Halloween, we thought we’d highlight this story from late September, involving the Batmobile and copyright litigation, both scary things.

When you think of creative works that are protected by copyright, you may think of a movie, song or book.  There are also less obvious examples of copyrightable works, however, such as the software code underlying this website, and fictional characters.

Fictional characters, such as Mickey Mouse, James Bond, or Batman, may be protected not just as parts of a larger work or series of works, but as free-standing creative works in their own right.  Over the years, the courts, and in particular the Ninth Circuit in California, have come up three requirements for characters to qualify for copyright protection: (i) they must have physical and conceptual qualities; (ii) they must be sufficiently delineated; and (iii) they must contain some unique element of expression.  Based on this test, the three characters above have all been found to be protected by copyright law.  Recently, however, the test has also been applied to a less obvious character: the Batmobile.

In late September of this year, the Ninth Circuit came down with an opinion in a case in which DC Comics, the owner of the rights in the Batman franchise, sued the operator of a garage specializing in custom-made vehicles based off of famous cars, in particular the Batmobile.  DC Comics argued, among other things, that the garage owner infringed its copyright in the Batmobile.  The garage owner, on the other hand, argued that DC Comics could not own a copyright in the Batmobile as the Batmobile itself was not copyrightable.  The Ninth Circuit sided with DC Comics and found that the Batmobile could be copyrighted as a character as it had physical and conceptual qualities, was sufficiently delineated, and contained some unique element of expression.  In other words, the court found that the Batmobile was easily recognizable in almost any context.  It did not matter that there were substantial differences in how the Batmobile was depicted in the comic book, in the 1966 television show, and in the 1989 movie (just as it in the past did not matter that the character of James Bond has changed dramatically over time, or that the Eleanor cars in the original and remade versions of the movie Gone in 60 Seconds were different models, years and colors).  Thus, because the garage owner admitted to copying the Batmobile, the court found him to be infringing the rights of DC Comics.

From this arguably strange case comes a simple lesson:  keep good IP hygiene.  If you think that you may be infringing someone’s rights or if you’re just not sure, contact an IP attorney.  Either you are in the clear and you can go on your merry way, or there is a copyright issue and you will have to stop using the character (or whatever other creative work you are using), or you will have to seek permission from the copyright owner to continue your use.  Although a licensing arrangement may cost you some money, it will almost certainly be less expensive than being a defendant in a federal law suit, and you can invest the money you have saved in some prime Halloween candy instead.