By Karen A. Henry
Judge Ronald Lew’s recent decision in DC Comics v. Towle, No. CV11-03934 RSWL (OPx) (C.D. Cal. Feb. 7, 2013) (“Towle”), demonstrates that the line between “useful articles” and copyrightable expression may not be as clear as you think. In Towle, plaintiff DC Comics (“Plaintiff”), the publisher of comic books featuring Batman and the Batmobile, sued Mark Towle d/b/a Gotham Garage (“Defendant”), claiming that Defendant’s production and sale of replica vehicles modeled after the Batmobile depicted in the 1966 “Batman” television series (“the Series”) and the 1989 “Batman” film (“the Film”) infringed its copyright (among other things). The parties filed cross-motions for partial summary judgment, and Judge Lew granted Plaintiff’s partial summary judgment motion on this issue, finding that the Batmobile is a comic book character entitled to full copyright protection.
The Batmobile Is Protectable Under Copyright Law As A Character
As Judge Lew recognized, two standards have developed in the Ninth Circuit to determine whether a character is entitled to copyright protection. Under Warner Bros. Pictures, Inc. v. Columbia Broadcasting Systems, Inc., 216 F. 2d 945, 950 (9th Cir. 1954), literary characters are protected by copyright if “the character constitutes the story being told.” Recognizing the distinction between literary characters and comic book characters, however, the court in Walt Disney Prods. v. Air Pirates, 581 F. 2d 751, 755 (9th Cir. 1978), questioned whether the standard announced in Warner Bros. was the appropriate standard for comic book characters. Twenty five years later, in Rice v. Fox Broadcasting Co., 330 F. 3d 1170, 1175 (9th Cir. 2003), the Ninth Circuit articulated a different standard – the “character delineation test” – under which “characters that are ‘especially distinctive’ or ‘the story being told’ receive protection apart from the copyrighted work.”
In Towle, Judge Lew discussed these cases and noted that courts analyzing whether works are “especially distinctive” for purposes of the “character delineation” standard have extended copyright protection to characters that “display consistent, widely identifiable traits.” (No. 11-03934, *35).
Relying on this precedent, Judge Lew reasoned that the Batmobile is protectable as a character if it “conveys a set of distinct characteristics.” Id., * 37. Measured by this criterion, Judge Lew found it “undeniable” that the Batmobile exhibits “a series of readily identifiable and distinguishing traits.” Id.
“The Batmobile is known by one consistent name that identifies it as Batman’s personal vehicle. It also displays consistent physical traits. The Batmobile, in its various incarnations, is a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime. Even though the Batmobile is not identical in every comic book, film, or television show, it is still widely recognizable because it often contains bat-like motifs, such as a bat-faced grill or bat-shaped tailfins in the rear of the car, and it is almost always jet black.” Id., *37-38.
Citing various excerpts from the “Batman” comic book, Judge Lew continued: “[o]ther than its physical features, the Batmobile is depicted as being swift, cunning, strong, and elusive. … The Batmobile participates in various chases and is deployed to combat Batman’s enemies. The comic books portray the Batmobile as a superhero. The Batmobile is central to Batman’s ability to fight crime and appears as Batman’s sidekick, if not an extension of Batman’s own persona. ” Id., *39 (emphasis added).
Given the Batmobile’s various “characteristics,” Judge Lew held that “the Batmobile is a character entitled to copyright protection.” Id. Noting that “copyright in a work protects against unauthorized copying, not only in the original medium in which the work was produced, but also in any other medium as well,” Judge Lew concluded that “Defendant’s copying of the two-dimensional Batmobile character … into three dimensional forms is copyright infringement.” Id.
Judge Lew flatly rejected the Defendant’s argument that the Batmobile was not copyrightable under the useful articles doctrine because it is just a car. As Judge Lew emphasized, “Defendant did not copy the design of a mere car; he copied the Batmobile character.” (No. 11-03934, *43.) Consequently, “[t]he fact that the unauthorized Batmobile replicas that Defendant manufactured may be ‘useful articles’ is irrelevant.” Id., *43-44.
Although the Defendant in Towle produced replica cars, not entertainment content, the decision should be of interest to production companies that create their own versions of well-known elements (like the Batmobile) from other films and television programs and incorporate them into new works. Judge Lew’s decision suggests that even functional elements sometimes may be treated as “characters” for purposes of copyright law.
 Judge Lew’s opinion addresses a variety of additional copyright, trademark and unfair competition issues not covered in this article. This article only discusses the opinion to the extent it addresses the issue of whether the Batmobile qualifies as a character for purposes of copyright law.