The Batmobile Case: When Judges Appraised Art

NA-na-na-na-NA-na-na-na NA-na-na-na-NA-na-na-na LAWSUUUUUUUIT!

DC Comics v. Towle is a little-known lawsuit that hinged on whether or not the Batmobile was original enough to warrant copyright protection as a “character.”  While that’s about as fun a lawsuit as you’re likely to find in general, it’s also an occasion in which the court broke its usual taboo to comment on degrees of distinctiveness required to justify copyright protection on the part of a work. Commentary on whether or not something is art, or to what degree of importance any single portion of an artistic whole constitutes, is an exceedingly rare event in law (I’ll likely explain why in another post soon, just trust me for now, it’s for good reason).

Unlike Mark Towle, I’m not quite bold enough to flirt with disaster and need to offer a disclaimer. This is not legal advice, and I would NOT recommend picking a legal battle with a company that already has attorneys on retainer at the ready after reading a couple of articles that are essentially infotainment.

Back to the case - Mark Towle, owner of a garage that built cars designed to resemble the Batmobile in both the Adam West Batman TV show and 1989 BATMAN film, was sued by DC for infringement (I live near the garage, saw the rides and, as advertised, they looked like they rolled off the movie or TV set).  This case presents a fundamental question in intellectual property: at what point does a character in a copyright-protected work warrant copyright protection of their own?  This question gets murky quickly as copyright law protects completed works, but not necessarily individual, separable portions, i.e., characters.

This is important as, without protection, anyone could just make their own derivative work of a part of another work so long as they only take bits and pieces that may have essential characteristics of the work but are not themselves protected: think of it as a possible Wacky Races of intellectual theft. 

This is not exactly a new problem: in the 1600s, an unauthorized sequel to Don Quixote, similarly starring the titular character, was published.  This prompted author Miguel de Cervantes to rush to come out with his own, illustrating how far back the perils of fanfiction run amuck go for copyright holders.  For a more contemporary example, this could include something like publishing a Bart Simpson comic, so long as it wasn’t a derivative of the broader The Simpsons intellectual property in general, i.e takes place outside of Springfield, has a different art style, and doesn’t involve any other characters from the show.

Or, as a judge who desperately needs their own blog wrote it:

“We are asked to decide whether defendant Mark Towle infringed DC Comics’ exclusive rights under a copyright when he built and sold replicas of the Batmobile, as it appeared in the 1966 show Batman and the 1989 film BATMAN.  Holy copyright law, Batman!…

We begin with the question whether the Batmobile, as it appears in the comic books, television series, and motion picture, is entitled to copyright protection… Courts have recognized that copyright protection extends not only to an original work as a whole, but also to ‘sufficiently distinctive’ elements, like comic book characters, contained within the work…”

Distinctive enough?

The court then went on to review previous court opinions on the issue of protecting characters as one of those “sufficiently distinctive” elements:

“Not every comic book, television, or motion picture character is entitled to copyright protection.  We have held that copyright protection is available only ‘for characters that are especially distinctive.’... To meet this standard, a character must be ‘sufficiently delineated’ and display ‘consistent, widely identifiable traits.’ ... A masked magician ‘dressed in standard magician garb’ whose role ‘is limited to performing and revealing the magic tricks,’ for example, is not ‘an “especially distinct” character differing from an ordinary magician in a manner that warrants copyright protection.’ ... Further, characters that have been ‘lightly sketched’ and lack descriptions may not merit copyright protection.”

The court then elaborated that, while a consistent appearance may lend more of an argument for protection of a particular likeness, a lack thereof would not necessarily disqualify. It gave the examples of James Bond, Batman, and Godzilla as copyright-protected characters despite several different looks (including several Bond actors).

In the case of Bond, the court quoted a previous case that singled him out as distinct due to his “cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication.’”  In the case of all three, the court found that “In short, although James Bond’s, Gozilla’s, and Batman’s costume and character have evolved over the years, [they have] retained unique, protectable characteristics’ and are therefore entitled to copyright protection as characters.”  I don’t think Godzilla has ever worn a costume, but the rest of that tracks: you could recognize someone dressed as any of those characters, even if they didn’t precisely copy any particular appearance of said character.

As a fun example, here is a shot of yours truly with a multiverse of Ricks (including a Ghostbusters Rick I really wish I got a better shot of on the left), each one retaining enough details distinctive to Rick Sanchez from Rick and Morty to be immediately recognizable as the central character of the show, yet all unique:

Now onto the guts of the case: the 3-part test (I added the bold font)

“We read these precedents as establishing a three-part test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection. First, the character must generally have ‘physical as well as conceptual qualities.’... Second, the character must be ‘sufficiently delineated’ to be recognizable as the same character whenever it appears…Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance... Third, the character must be “especially distinctive” and “contain some unique elements of expression.”... It cannot be a stock character such as a magician in standard magician garb…Even when a character lacks sentient attributes and does not speak, it can be a protectable character if it meets this standard.”

And there we see the rule the court is to apply, that the character in question 1) have physical and conceptual qualities; 2) be sufficiently delineated to be recognizable; and 3) be especially distinctive and contain some unique elements of expression.  The court also qualifies that it can’t be a “stock” character, and being a non-speaking thing would not disqualify it.

Applying this framework, the court stated

“First, because the Batmobile has appeared graphically in comic books, and as a three-dimensional car in television series and motion pictures, it has “physical as well as conceptual qualities,” and is thus not a mere literary character.”:

Box 1 checked.

“Second, the Batmobile is “sufficiently delineated” to be recognizable as the same character whenever it appears.”  The court then went on to elaborate on just how uniquely bat-like the Batmobile is, and then went on for several paragraphs about what a unique vehicle it truly is in every iteration, describing times when it “foils the Joker’s attempt to steal the Batmobile” and was “described as waiting ‘[l]ike an impatient steed straining a the reins… shiver[ing] as its super-charged motor throbs with energy’ before it ‘tears after the fleeing hoodlums’ an instant later.” 

Poetic stuff that satisfies the second prong of the test.

“Third, the Batmobile is ‘especially distinctive’ and contains unique elements of expression.  In addition to its status as Batman’s loyal bat-themed sidekick complete with the character traits and physical characteristics described above, the Batmobile also has its unique and highly recognizable name.

Accordingly, applying our three-part test, we conclude that the Batmobile is a character that qualifies for copyright protection.”

So there you go: the Batmobile has copyright protection, and we all have a case with a test to guide on cosplay, fanfiction, and many other fun types of potential copyright infringement.