Jim Porter: Holy copyright law, Batman! Kapow! Thwack! Zowie! Bam!
November 5, 2015
"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 television show Batman and the 1989 film BATMAN. Holy copyright law, Batman!"
That succinct summary of our Batman case came from the U.S. Court of Appeals, 9th Circuit, Opinion.
"Since his first comic book appearance in 1939, the Caped Crusader has protected Gotham City from villains with the help of his sidekick Robin the Boy Wonder, his utility belt, and of course, the Batmobile."
The Batmobile is a fictional high-tech automobile that Batman employs as his primary mode of transportation. Everyone knows that, but did you know that 15 minutes could save you 15 percent or more with GEICO?
The Batmobile has been featured in many television programs and films; two are relevant to this case: The 1966 television series Batman starring Adam West, and the 1989 movie BATMAN, starring Michael Keaton.
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POW! BOFF! THWACK!
In addition to Batman, Robin and visual onomatopoeia that flashed on screen during fight scenes – Pow! Boff! Thwack! – the television series featured the Batmobile.
The 1989 movie Batmobile was distinct from the Batmobile portrayed in the comic books and the 1966 television series, but retained a bat-like appearance and as always was equipped with "futuristic technology and crime-fighting weaponry."
Over the years, the owner of the Batman copyrights, DC Comics, licensed them to others, but kept the basic copyrights. DC Comics is the plaintiff in our Batmobile saga.
Batman always fights the villain and our case is no different.
Mark Towle produces replicas of the Batmobile as it appeared in the TV show and the 1989 movie as part of his business at, get this: Gotham Garage.
Towle sells his Batmobiles for around $90,000 to avid car collectors (EEE-Yow!). He advertises his replicas as the "Batmobile" and his vehicles draw attention due to the fame of the Batmobile. Towle acknowledges he is not authorized to manufacture or sell any product associated with Batman or the Batmobile. Bam!
I may not be a judge, but I am ready to judge. Towle's business should be shut down or he should be sending checks to DC Comics. Zowie! But I'm no judge, so we continue.
Mark Towle was sued for copyright infringement, trademark infringement and unfair competition for manufacturing and selling Batmobile replicas.
Towle's defense was that the Batmobile was not entitled to copyright protection, because it was not distinct and was, after all, a car. Kapow!
The trial court ruled against Towle, he appealed.
Godzilla, Eleanor and James Bond
The Court of Appeals listened to Towle's arguments then wrote that other characters had "consistent, widely identifiable traits like Godzilla and "Eleanor," a car that appeared in the 1971 and 2000 remake movie Gone in 60 Seconds, which, by the way, was a pretty good movie.
James (Porter) Bond
The Court of Appeals went on analogizing the Batmobile case to James Bond – a character with consistent traits and attributes that easily qualifies for copyright protection.
As you read the Court's description of the character "James Bond"," think James Porter: "James always maintains 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." Boing!
The Batmobile, like James, is especially distinctive and contains unique elements of expression, thus qualifies for copyright protection.
Batman to Robin
As Batman so sagely told Robin, "In our well-ordered society, protection of private property is essential." Batman: the Penguin Goes Straight.
Towle loses, Batman and his Batmobile win. Holy judgment Batman!
AUTHOR'S TRIBUTE: TODAY'S COLUMN IS DEDICATED TO OUR DEAR FRIEND JUDGE JOHN KENNELLY, A GENTLEMAN AND A SCHOLAR.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City, California and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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