"Supergirl" Casts its Lucy Lane
A federal judge on Thursday dealt a crippling blow to a custom carmarker, siding with DC Comics in a ruling that declared the Batmobile isn’t merely an automobile but “a copyrightable character.”
The publisher sued Gotham Garage owner Mark Towle in May 2011, accusing his California-based business of violating its trademarks and copyrights by manufacturing and selling unlicensed replicas of the 1966 and 1989 Batmobile. DC sought a permanent injunction, the destruction of all infringing products and damages of no less than $750,000 for each infringement.
However, Towle countered that the U.S. Copyright Act affords no protection to “useful articles,” defined as objects that have “an intrinsic utilitarian function” — for example, clothing, household appliances or, in this case, automobile functions. He failed to persuade U.S. District Judge Ronald Lew with that argument last year in a motion to dismiss, and he was no more successful this time.
In what Hollywood Esq. characterizes as “an extraordinary 54-page ruling,” Lew determined, “The Batmobile is a character and exists in both two- and three-dimensional forms. Its existence in three-dimensional form is the consequence of the Batmobile’s portrayal in the 1989 live-motion film and 1966 television series. […] Defendant did not copy the design of a mere car; he copied the Batmobile character. The fact that the unauthorized Batmoble replicas that Defendant manufactured — which are derivative works — may be ‘useful articles’ is irrelevant. A derivative work can still infringe the underlying copyrighted work even if the derivative work is not independently entitled to copyright protection.”
The judge didn’t stop there, though: He got a little nerdy in swatting down the admonition by Towle’s attorney that granting the Batmobile copyright protection could lead “Ford, Toyota, Ferrari and Honda [to] start publishing comic books, so that they could protect what, up until now, was unprotectable.”
“In all of the fictional works, the Batmobile is deployed as Batman’s mode of transportation. However, the Batmobile is entirely distinguishable from an ordinary automobile,” Lew wrote. “The Batmobile is a fictional character tied to the fictional Batman character. The Batmobile is a crime fighting weapon and used to display the Batman persona. The Batmobile, and the so-called functional elements associated with it, is not a useful object in the real world, and incorporates fantasy elements that do not appear on real-world vehicles. The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only
‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”
What’s more, Lew determined both version of the Batmobile had distinctive design elements that are “conceptually separable from their underlying car.” “In particular,” he wrote, “the 1989 Batmobile’s entire frame, consisting of the rear exaggerated, sculpted bat-fin and the mandibular front, is an artistic feature that can stand on its own without the underlying vehicle. The underlying vehicle would still be a car without the exaggerated bat features.”
Towle’s Gotham Garage Batmobile replicas sold for as much as $90,000, and took more than a year to construct.