Everyone wants a piece of the Batmobile, even judges!

These days, everyone’s a geek: fashion designers, TV stars, models, even judges.  We’ve covered before the fun judges have had with Star Wars and Star Trek references and apparently the august judges of the 9th Circuit (as federal appellate judges they’re only one step below the United States Supreme Court) have decided it’s time they get in on the fun.

This week, in DC Comics v. Mark Towle, the Ninth Circuit had to decide whether the Batmobile, a fictitious car created seventy four years ago in a comic book, was entitled to copyright protection. As the court explained in the opening paragraph of its decision, it had to decide whether the defendant had infringed DC Comics’ rights when he built and sold replicas of the Batmobile as depicted in the Adam West TV show and in Tim Burton’s movie version.  And the court couldn’t help itself, it had to end its opening paragraph with “Holy copyright law, Batman!”

It then went through the history of the licensing agreements DC Comics made over the years.  Then a description of the cars the defendant was making.  I thought these cars were just little models but they’re not: they’re real cars the defendant was selling for 90 grand apiece!

After setting up the key facts, the court turned to copyright law.  Copyright law in the US protects fixed expressions of creative works (e.g., songs, books, movies).  As the Ninth Circuit noted, copyright protects not only a work as a whole but also distinctive elements within the work (e.g., Robin, the Joker, etc.).  Not all characters get copyright protection, however, they have to be “especially distinctive” and display “consistent, widely identifiable traits.”  The characters do not always need to be exactly the same–they can have some changes in appearance so long as its distinctive elements or traits stay the same.  (By the way, the court then discussed what makes James Bond distinctive and it’s pretty entertaining to read the court’s take on what makes Bond distinctive, including his cold-bloodedness, overt sexuality, and love of martinis that are shaken, not stirred).

The court, after analyzing previous decisions in this area, decided that there is a three-part test that must be used: (1) the character must have physical as well as conceptual qualities; (2) the character must be recognizable (i.e., you always know it’s Bond, regardless of whether Pierce Brosnan or Daniel Craig is playing him); and (3) the character must be especially distinctive with unique elements of expression.  The court then applied this test to the Batmobile (even quoting cheesy Robin lines from the TV show in footnotes–this is why I love footnotes!) and found that, yes, the Batmobile was an “automative character” that had distinctive elements.

So, while Batman fans already knew this, the Ninth Circuit has now confirmed that the Batmobile is an important and protected part of Batman’s world (bet it doesn’t have to cheat on its emission testing).  Guess that means I should no longer refer to my awesome black minivan as the Batmobile!  Now I just need the Ninth Circuit to step in and confirm that this guy is Batman:

And this guy is not:


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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.