Holy Smokes Batman! The Batmobile Won Copyright Protection

Oct 30, 2015

Reading Time : 2 min

The Vigilante Goes to Court

In May 2011, DC brought a claim against Mark Towle for the unlicensed production and sale of Batmobile replicas. While Towle’s cars don’t look like carbon copies of the Batmobile as seen in the comic book, the 1966 television series or the 1989 film, his replicas rely heavily on bat imagery, the black color and even the name “Batmobile.”  Towle conceded that he was trying to imitate the Batmobile, but he argued that DC didn’t own the copyright to the Batmobile from the television show or the film. In the alternative, he argued that the Batmobile was not protected by copyright.

To the Bat-Analysis!

To address the case, the Ninth Circuit needed to answer two questions: (A) does DC own the copyright to the Batmobile from the television show or the film? and (B) is the Batmobile protected by copyright?

A. Does DC own the Copyright to the Batmobile from the television show or the film?

DC entered into agreements that specifically retained its copyright over all Batman merchandise, which would include replicas of the Batmobile. In 1965, DC’s predecessor National Periodical Publications, Inc. (National Periodical) entered into a licensing agreement to create the Batman television series. It provided the American Broadcasting Company (ABC) with the rights to create the show, but reserved its rights over Batman merchandise. In 1979, DC entered into another licensing agreement, this time to create a Batman motion picture with Batman Productions, Inc. (BPI). Again, DC reserved its rights over Batman merchandise. BPI later subleased the agreement to Warner Brothers, eventually resulting in the 1989 movie BATMAN.  Both the television show and the film incorporated the Batmobile, which—according to their respective agreements—remained the intellectual property of DC. 

After a straightforward analysis of DC’s ownership, the case careened into murkier precincts.

B. Is the Batmobile Protected by Copyright as a “Character”?

But is the Batmobile entitled to copyright protection as a “character” in an audiovisual work? To determine the answer, the court articulated a three prong test: (1) the character has physical as well as conceptual qualities, (2) the character must be “sufficiently delineated” such that it is recognizable as that character and, (3) the character needs to be “especially distinctive” and “contain some unique elements of expression.” 

First, the Batmobile has taken on a physical appearance, as evidence by its 2D and 3D representations in comic books, television shows and movies.  Second, the Batmobile is recognizable on its own, whether or not Batman is at the wheel. The bat motif, jet black color, and futuristic technology make it instantly recognizable to readers and audiences, even if the exact iteration of those features changes. Third, the Batmobile’s iconic name makes it “especially distinctive” to readers and audiences, making it more than “merely a stock character.” 

After providing this analysis, the court ruled in favor of DC comics, bringing Towle’s actions to a screeching halt.

Yet the Court did not need to go so far as to find an inanimate automobile to be a “character” under copyright law. The courts have long found that certain design elements of useful objects can be protected by copyright if the features are conceptually separable from the useful objects themselves. In fact, the District Court here ruled on this issue, finding that the Batmobile was protectable as a sculptural work under the U.S. Copyright Act. 

While R2-D2 from Star Wars is surely a character, embodying the independent action and personality the term “character” normally denotes, is the ring from Lord of the Rings a “character” under the Ninth’s Circuit’s analysis? What about the sword Excalibur? The Ninth Circuit decision answers one question and raises many others.  

 

Share This Insight

Previous Entries

Deal Diary

June 27, 2024

On June 24, 2024, the U.S. Securities and Exchange Commission (SEC) published five new Form 8-K Compliance and Disclosure Interpretations (C&DIs) expanding the agency’s interpretations of cybersecurity incident disclosures pursuant to Item 1.05 of Form 8-K. In July 2023, the SEC adopted final rules with respect to cybersecurity incidents that generally require public companies to disclose (i) material cybersecurity incidents within four business days after determining the incident was material and (ii) material information regarding their cybersecurity risk management, strategy and governance on an annual basis. We wrote about the final cybersecurity disclosure rules here.

...

Read More

Deal Diary

February 12, 2024

The Securities and Exchange Commission (SEC) recently adopted final rules (available here; also see the fact sheet and press release) representing significant changes to  special purpose acquisition companies (SPACs), shell companies and the disclosure of projections. These rules aim to enhance disclosures, protect investors and align the regulatory framework for SPACs with traditional IPOs. The following summarizes the key aspects of these rules.

...

Read More

Deal Diary

October 4, 2023

On September 20, 2023, the U.S. Securities and Exchange Commission (SEC) issued a final rule amending the so-called “Names Rule” (found here) that is “designed to modernize and enhance” protections under Rule 35d-1 of the Investment Company Act of 1940. The final rule is part of the SEC’s holistic efforts to regulate environmental, social and governance (ESG) matters, and is the SEC’s latest attempt to curb greenwashing in U.S. capital markets. The amendments require registered investment funds that include ESG factors in their names to place 80% of their assets in investments corresponding to those factors, thereby extending to ESG funds the SEC’s long-standing approach of regulating the names of registered funds to ensure they are marketed to investors truthfully. Fund complexes with more than $1 billion in assets will have two years from the final rule’s effective date (60 days after publication in the Federal Register) to comply, while fund complexes with less than $1 billion in assets will be given a compliance period of 30 months.

Chair Gary Gensler said “[t]he Names Rule reflects a basic idea: A fund’s investment portfolio should match a fund’s advertised investment focus. In essence, if a fund’s name suggests an investment focus, the fund in turn needs to invest shareholders’ dollars in a manner consistent with that investment focus. Otherwise, a fund’s portfolio might be inconsistent with what fund investors desired when selecting a fund based upon its name.” The sole dissenting vote against the rule modification, Commissioner Mark Uyeda, said “[w]ith these amendments, the Commission overemphasizes the importance of a fund’s name, as if to suggest that investors and their financial professionals need not look at the prospectus disclosures.” Commissioner Uyeda also expressed concern that fund investors will bear the increased compliance costs associated with the rule change.

...

Read More

Deal Diary

May 31, 2023

As discussed in our prior publication (found here), the Securities and Exchange Commission (SEC) adopted amendments on December 14, 2022, regarding Rule 10b5-1 insider trading plans and related disclosures. On May 25, 2023, the SEC issued three new compliance and disclosure interpretations (C&DIs) relating to the Rule 10b5-1 amendments.

...

Read More

Deal Diary

May 24, 2023

On May 15, 2023, the Eastern District of California ruled that California Assembly Bill No. 979 (“AB 979”) violates the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment and 42 U.S.C. § 1981. As enacted, California’s Board Diversity Statute, required public companies with headquarters in the state to include a minimum number of directors from “underrepresented communities” or be subject to fines for violating the statute. AB 979 defines a “director from an underrepresented community” as “an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.”

...

Read More

Deal Diary

May 9, 2023

Update: On October 31, 2023, the Fifth Circuit granted the US Chamber of Commerce's petition for review of the SEC's share repurchase disclosure rules, holding that the SEC acted arbitrarily and capriciously in violation of the Administrative Procedure Act. The court directed the SEC to correct the defects within 30 days of the opinion. On December 1, 2023, the SEC informed the Fifth Circuit that it was unable to correct the rule's defects within 30 days of the opinion. On December 19, 2023, the Fifth Circuit vacated the SEC’s share repurchase disclosure rules.

...

Read More

Deal Diary

April 12, 2023

We have released our 2023 ESG Survey which includes a collection of reports reflecting on significant ESG themes and trends from 2022, as well as what we believe to be key developments for 2023.

...

Read More

Deal Diary

February 6, 2023

As companies begin preparing for the 2023 proxy season, we note that Institutional Shareholder Services Inc. (ISS) and Glass Lewis, the leading providers of corporate governance solutions and proxy advisory services, issued updated benchmark policies (proxy voting guidelines), which can be found here and here, respectively. The updated proxy voting guidelines generally focus on board accountability and oversight considerations and address topics such as climate accountability, board diversity, shareholder rights, corporate governance standards, executive compensation and social issues. What follows is a summary of the proxy voting guidelines published by ISS and Glass Lewis for the 2023 proxy season.

...

Read More

© 2024 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.