Judge rules that it's illegal to sell custom Batmobiles because the Batmobile is itself a fictional character
Judge rules that it's illegal to sell custom Batmobiles because the Batmobile is itself a fictional character
California resident Mark Towle runs car customizing shop Gotham Garage, which makes replicas of cars from TVs and movies. Naturally, Batmobiles were on the menu, at least until Warner Bros. smacked Towle with a lawsuit for violating its intellectual property. Now a U.S. District Court Judge Ronald Lew judge has ruled that the Batmobile is subject to copyright because the Batmobile is itself a fictional character in the Batman franchise.
The Hollywood Reporter, which broke the story, has posted U.S. District Court Judge Ronald Lew's opinion on the case of DC Comics v. Mark Towle. Under normal circumstances, vehicles are subject to patents, with utility patents (on inventions that improve the functioning of a car, for example) lasting 20 years from the date of application and design patents (on the design of individual parts) lasting 14 years. But DC's suit alleged that Towle was in violation of its trademarks and copyrights.
Lew ruled that, in making and selling Batmobiles, Towle violated DC's copyright on the character of the Batmobile. Content owners are granted a copyright not just in text and artwork, but also in literary characters if the character constitutes "the story being told." For example, a character who is a generic superspy doesn't infringe upon the character of James Bond, but if your superspy is British, wears a tux, and drinks his vodka martinis shaken, chances are that you're in violation. The generic superspy is not a copyrightable character, but James Bond is.
But is a non-sentient car a character? Lew cited an earlier case, Halicki Films LLC, v. Sanderson Sales and Mktg. et al., which investigated whether or not the "Eleanor" car in the 1974 film Gone in 60 Seconds was a copyrightable character. Although the Ninth Circuit did not resolve whether Eleanor was herself copyrightable, the discussion of the case indicates that a plain old non-sentient vehicle is not necessarily excluded from character copyright protection as long as it fulfills the other requirements of a character copyright. And, in Lew's analysis, the Batmobile fulfills those requirements.
Lew also finds that, even if it fails the character copyright test, the Batmobile would be copyrightable as a "pictorial, graphic, and sculptural work." But it's the discussion of the Batmobile as character that's the most interesting. It makes sense that, especially in graphic media, objects that we don't traditionally consider characters would be integral to the storytelling. You could have a perfectly engaging story that centers on the Batmobile, after all. If other courts uphold this case or cite it as persuasive law, it creates some questions about what constitutes a character in storytelling, and what constitutes a mere storytelling accessory.
DC Comics VS MARK TOWLE 1966 Batmobile Replicas
Moderators: Scott Sebring, Ben Bentley
Re: DC Comics VS MARK TOWLE 1966 Batmobile Replicas
Defendant Appeals Decision
Defendant Appeals Judge’s Decision That Batmobile Is More Than Just A Sweet Ride
In DC Comics v Mark Towle, a copyright infringement suit involving Warner Brothers’ subsidiary DC Comics, the United States Court of Appeals for the Ninth Circuit is set to decide whether the Batmobile is a character protected by copyright.
Background
DC Comics is the publishing giant behind iconic characters such as Superman, Wonder Woman, and the brooding caped crusader we all know as Batman. In 2011, DC took to task the California-based vendor Mark Towle for copyright infringement, trademark infringement, and unfair competition. Under the business name “Gotham Garage”, Towle fabricated replicas of the Batmobile, Batman’s vehicle of choice. DC was granted summary judgment on the issue of trademark infringement, as the business had used trademarked terms “Gotham” and “Batmobile” in advertisements. The issue or of copyright infringement, however, was not so clear cut.
The Lower Court’s Decision
In certain circumstances, US law grants protection to characters that inhabit an author’s copyrighted works. Copyright has been primarily extended to characters that are present in multiple works and across multiple media platforms. While protectable characters must be very distinctive, their appearance and personality can vary to a degree—so long as they possess “consistent, widely identifiable traits”, they remain under the blanket of copyright.
In the lower court decision, the defendant argued that the Batmobile is unprotectable because it is a non-sentient car. While copyright does not apply to useful articles or utilitarian objects, protection does extend to non-functional artistic elements of an automobile. The plaintiff contended that the car’s front grill, fenders, wheels, fins, cockpit and exhaust pipe all fall under this latter category. Towle argued that DC’s logic is problematic, as it ends up encompassing the car as a whole.
District Court Judge Ronald Lew accepted DC’s argument, ruling that the Batmobile is protectable as a character “existing in both two- and three-dimensional forms”. The defendant “did not copy the design of a mere car; he copied the Batmobile character”. Lew wrote that the vehicle is not only world-famous, but also readily identifiable by its consistent bat-like motifs. The car was also seen as an “extension of Batman’s own persona” that reinforced the image of its master as a “swift, cunning, strong, and elusive” creature of the night. The Batmobile’s fantastically exaggerated features, such as its sculpted bat-fins and mandibular front, Lew argued, are independently protectable from the car’s utilitarian frame. Additionally, “so-called functional elements” such as torpedo launchers are only useful because they fulfilled Batman’s unique crime-fighting needs.
The appeal
In his reply brief, the defendant argues that the Batmobile’s artistic elements are inseparable from the automobile’s utility. Towle also contends that the vehicle’s design has varied too greatly to support the notion that it is a “sufficiently delineated” character worthy of copyright protection. DC responds by pointing out that James Bond and Godzilla are both protectable characters despite having undergone considerable changes in appearance and personality. The company also notes that precedent supports a finding of protection. Inanimate objects closely associated with well-known characters, such as Freddy Krueger’s glove and Gone in 60 Seconds’ Ford Mustang “Eleanor”, have been recognized as copyrightable characters onto themselves. Towle counters, stating that “the Batmobile replicas do not portray any of the personality traits purportedly exhibited by the Batmobiles in DC’s comic books. Among other things, a replica does not remain ‘hidden in the Batcave’ until Batman needs it, and the replicas, which are, after all, functional automobiles, are obviously not indestructible.”
Summary by: Elena Iosef
**** Admin edit and note:
If this case is to be discussed at all it must remain with just the facts of the case as illustrated above. Any derogatory remarks, political commentary art or the like will not be allowed on this board as per our "no hassle zone" policy as described in our rules. Any rebuttal or debate about this policy by the moderator must be handled offline via PM. Otherwise it will be deleted. Please check our rules and policies before doing so.
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Board Rules
Defendant Appeals Judge’s Decision That Batmobile Is More Than Just A Sweet Ride
In DC Comics v Mark Towle, a copyright infringement suit involving Warner Brothers’ subsidiary DC Comics, the United States Court of Appeals for the Ninth Circuit is set to decide whether the Batmobile is a character protected by copyright.
Background
DC Comics is the publishing giant behind iconic characters such as Superman, Wonder Woman, and the brooding caped crusader we all know as Batman. In 2011, DC took to task the California-based vendor Mark Towle for copyright infringement, trademark infringement, and unfair competition. Under the business name “Gotham Garage”, Towle fabricated replicas of the Batmobile, Batman’s vehicle of choice. DC was granted summary judgment on the issue of trademark infringement, as the business had used trademarked terms “Gotham” and “Batmobile” in advertisements. The issue or of copyright infringement, however, was not so clear cut.
The Lower Court’s Decision
In certain circumstances, US law grants protection to characters that inhabit an author’s copyrighted works. Copyright has been primarily extended to characters that are present in multiple works and across multiple media platforms. While protectable characters must be very distinctive, their appearance and personality can vary to a degree—so long as they possess “consistent, widely identifiable traits”, they remain under the blanket of copyright.
In the lower court decision, the defendant argued that the Batmobile is unprotectable because it is a non-sentient car. While copyright does not apply to useful articles or utilitarian objects, protection does extend to non-functional artistic elements of an automobile. The plaintiff contended that the car’s front grill, fenders, wheels, fins, cockpit and exhaust pipe all fall under this latter category. Towle argued that DC’s logic is problematic, as it ends up encompassing the car as a whole.
District Court Judge Ronald Lew accepted DC’s argument, ruling that the Batmobile is protectable as a character “existing in both two- and three-dimensional forms”. The defendant “did not copy the design of a mere car; he copied the Batmobile character”. Lew wrote that the vehicle is not only world-famous, but also readily identifiable by its consistent bat-like motifs. The car was also seen as an “extension of Batman’s own persona” that reinforced the image of its master as a “swift, cunning, strong, and elusive” creature of the night. The Batmobile’s fantastically exaggerated features, such as its sculpted bat-fins and mandibular front, Lew argued, are independently protectable from the car’s utilitarian frame. Additionally, “so-called functional elements” such as torpedo launchers are only useful because they fulfilled Batman’s unique crime-fighting needs.
The appeal
In his reply brief, the defendant argues that the Batmobile’s artistic elements are inseparable from the automobile’s utility. Towle also contends that the vehicle’s design has varied too greatly to support the notion that it is a “sufficiently delineated” character worthy of copyright protection. DC responds by pointing out that James Bond and Godzilla are both protectable characters despite having undergone considerable changes in appearance and personality. The company also notes that precedent supports a finding of protection. Inanimate objects closely associated with well-known characters, such as Freddy Krueger’s glove and Gone in 60 Seconds’ Ford Mustang “Eleanor”, have been recognized as copyrightable characters onto themselves. Towle counters, stating that “the Batmobile replicas do not portray any of the personality traits purportedly exhibited by the Batmobiles in DC’s comic books. Among other things, a replica does not remain ‘hidden in the Batcave’ until Batman needs it, and the replicas, which are, after all, functional automobiles, are obviously not indestructible.”
Summary by: Elena Iosef
**** Admin edit and note:
If this case is to be discussed at all it must remain with just the facts of the case as illustrated above. Any derogatory remarks, political commentary art or the like will not be allowed on this board as per our "no hassle zone" policy as described in our rules. Any rebuttal or debate about this policy by the moderator must be handled offline via PM. Otherwise it will be deleted. Please check our rules and policies before doing so.
***
Board Rules
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greenhornet66
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- Joined: Tue Sep 04, 2012 4:18 am
Re: DC Comics VS MARK TOWLE 1966 Batmobile Replicas
Basiclly, the batmobile is a part of the Batman franchise, character, and merchandise. It is part of the Batman trademark. So to me, any car that is designed and sold for profit that replicates something that looks like the original subject should be given permission to do so by the tradmark ownership. This encludes specific details, markings, and insignia.
Re: DC Comics VS MARK TOWLE 1966 Batmobile Replicas
I am Posting just the Facts. I am letting all of my fellow Board Members know that Mark Towle's Law Suit against me, Scott Lee,...filed against me in California was dismissed without prejudice on 3/6/2015 but my Cross Complaint against Mark Towle is moving forward and in process. Any claim he made against me or any claims any of you were fraudulently told is now proven false and he can never file another suit against me over these matters. I am fighting valiantly Pro-Per to force him to pay me with my 1966 Replica Batmobile as well as be awarded large damages for what he and his accomplice did to me.
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hobbybuilder01
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- Joined: Mon Sep 03, 2012 7:54 pm
Re: DC Comics VS MARK TOWLE 1966 Batmobile Replicas
Defensible in my opinion is that the 66 Batmobile was mostly derived from the Lincoln concept the Futura with mods by Barris. In this case Ford should have the rights to the design of the car .
Re: DC Comics VS MARK TOWLE 1966 Batmobile Replicas
That is like saying an artist that sculpts a masterpiece out of clay owns the rights to the sculpture when he was hired and paid to do so. If that were true the rights would be owned by George Barris... Or saying that the rights for the sculpture would be owned by the clay manufacturer if that were true it would be Ford, but the truth is the entity that hired the Creative work to be done as in this case and owned by fair negotiation all marketing rights for merchandise from the 1966 show is DC Comics and that is how the Court ruled their decision. The appeal is not expected to succeed.
It's not unlike the person being hired by a perfume company to design a new perfume, they do not own the rights of the perfume they design as a work for hire, the company that hired them to create it would own all rights. Mark Towle did not design anything on the Batmobile Replicas he simply copied other's designs and profited by them.
In my case using the perfume designers example, he hired the designer to create the perfume, used it to profit from for many years and then refused to pay the designer claiming he owned the perfume and all rights to it then as a Fact when challenged for non payment, did a heinous thing and sued the designer of the perfume to stop him from taking back his perfume while making it very difficult to get paid through legal process for his creation. If the Creator of the perfume is not paid as agreed to by the Contract then legally and by moral righteousness the Designer has been robbed and cheated.
Here is the link for the oral arguments to the 9th District Supreme Court.
You can watch the oral arguments of the appeal here.
It's not unlike the person being hired by a perfume company to design a new perfume, they do not own the rights of the perfume they design as a work for hire, the company that hired them to create it would own all rights. Mark Towle did not design anything on the Batmobile Replicas he simply copied other's designs and profited by them.
In my case using the perfume designers example, he hired the designer to create the perfume, used it to profit from for many years and then refused to pay the designer claiming he owned the perfume and all rights to it then as a Fact when challenged for non payment, did a heinous thing and sued the designer of the perfume to stop him from taking back his perfume while making it very difficult to get paid through legal process for his creation. If the Creator of the perfume is not paid as agreed to by the Contract then legally and by moral righteousness the Designer has been robbed and cheated.
Here is the link for the oral arguments to the 9th District Supreme Court.
You can watch the oral arguments of the appeal here.
Re: DC Comics VS MARK TOWLE 1966 Batmobile Replicas
When you watch the video of the oral arguments you will notice Mark Towle's Attorney makes highly questionable statements. In the first few moments he claims Mark Towle does not put his replicas nor has he ever put the replicas in films or movies as a character. It is a Fact that Mark Towle's replicas have appeared in Fan Films, and other YouTube Fan videos.... as "The Batmobile" It's an interesting watch, but Lerner made some very vital errors. He is caught in his argument either intentionally or not being incredibly inaccurate and making claims that are simply highly questionable.
Mr. Lerner states that every person that bought a Batmobile replica signed a declaration to assist in this case to help Mark Towle that they knew it was not a DC product. This again is simply not true. I never signed one, and I did pay thousands of dollars to Mark Towle but never recieived a thing back, others I know for fact never signed one, some that paid full balance up front and also never got anything back from Mark Towle.
Mr. Lerner's argument is seen by most to be weak at best and further though if he is aware or notcan be considered by some in the know dishonest. He also claims that Mark Towle never got a cease and desist though one was posted he received many years ago claiming it was one Towle was sent by DC and Mark Towle told me himself he did receive one years ago or something very similar.
Mr. Lerner holds up an image of the Tumbler, and claims it is the Batmobile when clearly it is the Tumbler. The holes are everywhere in his presentation but we will see what happens.
Mr. Lerner states that every person that bought a Batmobile replica signed a declaration to assist in this case to help Mark Towle that they knew it was not a DC product. This again is simply not true. I never signed one, and I did pay thousands of dollars to Mark Towle but never recieived a thing back, others I know for fact never signed one, some that paid full balance up front and also never got anything back from Mark Towle.
Mr. Lerner's argument is seen by most to be weak at best and further though if he is aware or notcan be considered by some in the know dishonest. He also claims that Mark Towle never got a cease and desist though one was posted he received many years ago claiming it was one Towle was sent by DC and Mark Towle told me himself he did receive one years ago or something very similar.
Mr. Lerner holds up an image of the Tumbler, and claims it is the Batmobile when clearly it is the Tumbler. The holes are everywhere in his presentation but we will see what happens.