Even freelance crime-fighters occasionally have to rely on the courts to get justice.
The 9th U.S. Circuit Court of Appeals in San Francisco ruled last week that the Batmobile, the comic book hero Batman’s primary crime-fighting vehicle, has enough distinct character traits to qualify for copyright protection. The upshot is that a company that makes and sells Batmobile replicas can’t do that without approval (and, we assume, rights fees being paid) from the entity that owns the car’s copyright.
That company is DC Comics, which created the Batman character in 1939.
But it was not so clear what copyright DC Comics owned, to what car.
The Batmobile also first appeared in 1939 as a red car (sometimes seen as a convertible, others times as a sedan) that was merely called Batman’s “car”. The first instance of the Batmobile name being applied to it wasn’t until 1941.
Through the years, the Batmobile has appeared in many iterations – from bulky sedans to streamlined spaceship-type vehicles. In a 1943 Batman film, a Cadillac was used – although it had no superpowers. A sequel in 1949 employed a Mercury.
It wasn’t until 1960 that the first car dubbed a “Batmobile” appeared in public; the car, a customized 1956 Oldsmobile Rocket 88, toured the country in a Batman-inspired advertising campaign for a line of dairy products.
In 1965, customizer Dean Jeffries was commissioned to build a Batmobile for the soon-to-be produced Batman television series (the one with Adam West starring). He started to re-fashion a 1959 Cadillac for the task. But when producers asked for the vehicle sooner than planned, Jeffries backed off and the project was handed to noted stylist George Barris.
Barris, in turn, worked with the Ford Motor Company to re-purpose the ten-year-old Lincoln Futura auto show design study into what most people now recognize as the modern Batmobile.
The original Batmobile was reportedly sold by Barris in 2013, at auction, for $4.2 million. Several authorized replicas of that car are said to exist.
Even though many subsequent versions have appeared, the one protected by the 9th Circuit Court’s ruling relates to the Barris-created model.
“As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential,'” 9th Circuit Judge Sandra Ikuta wrote in a lively unanimous opinion issued by a three-judge panel.
The loser, defendent Mark Towle, runs a business called Gotham Garage that was in the business of selling replica Batmobiles for $90,000 or so, depending on how many crime-fighting gadgets a buyer opted for (nail-spewers, oil jets, machine guns, etc).
DC Comics, owned now by Time Warner’s Warner Brothers unit, sued Towle for copyright infringement in 2011. A lower court judge had ruled in favor of DC Comics, but Towle had appealed.
Batman’s vehicle has consistent character traits that can be protected by copyright, Ikuta noted
“No matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains,” she wrote.
There is no dispute that DC created the Batman character, she continued, and various licenses it has entered into over the years did not transfer its underlying property rights.
Towle’s attorney Larry Zerner contended, “The law specifically states that automobile designs are not subject to copyright. My client just sells cars. The car is not a character. The car is a car.”
That may be, but the Batmobile is a Batmobile.
September 27, 2015