Copyhype

Last month, the Supreme Court denied review of a cert petition in DC Comics v. Towle, regarding whether the Batmobile can be protected by copyright. This in itself isn’t news—the Supreme Court only grants roughly 5% of all petitions it receives. But the subject matter of this litigation brought a fair amount of attention, so let’s take a quick look at last September’s Ninth Circuit decision, which now stands.

This litigation begins, as the court recounts, with defendant Mark Towle, who runs a business called Gotham Garage. Among other things, his business sells replicas of the Batmobile, as depicted in the 1966 television show and 1989 motion picture. He also sells kits which allow customers to modify their cars to look like these Batmobiles. DC Comics, the publisher of comics featuring Batman, sued Towle for copyright infringement, trademark infringement, and unfair competition for manufacturing and selling the replica Batmobiles. Both parties moved for summary judgment, and in a 2013 order, the district court granted summary judgment in favor of DC Comics on the copyright claim, finding that the Batmobile “was a character entitled to copyright protection.” On appeal, the Ninth Circuit affirmed, concluding that “the Batmobile character is the property of DC, and Towle infringed upon DC’s property rights when he produced unauthorized derivative works of the Batmobile.”

Under the Copyright Act, copyright protection subsists in works.¹17 U.S. Code § 102. But courts have long held that characters can be independently protected by copyright.²Rice v. Fox Broad. Co., 330 F.3d 1170, 1175 (9th Cir. 2003); Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 235 (2d Cir. 1983); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.12 (2015) (“Although there has been some conflict in the cases, it is clearly the prevailing view that characters per se are entitled to copyright protection.” (footnotes omitted).). It’s worth noting that trademark protection for characters may overlap with copyright protection for characters. See Jane C. Ginsburg, Licensing Commercial Value: From Copyright to Trademarks and Back 2-3 (Colum. Law Sch. Ctr. for Law and Econ. Studies, Working Paper No. 516, 2015); Kathryn M. Foley, Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide, 41 Conn. L. Rev. 921, 939 (2009). Courts that have found characters independently copyrightable have done so when “the character appropriated was distinctively delineated in the plaintiff’s work,”³Salinger v. Colting, 641 F. Supp. 2d 250, 254 (S.D.N.Y. 2009), vacated on other grounds, 607 F.3d 68 (2d Cir. 2010) (quoting 1 Nimmer, supra note 16, § 2.12). or are “‘especially distinctive’ or the ‘story being told.’”⁴Rice, 330 F.3d at 1175. Examples include Amos ‘n’ Andy,⁵Silverman v. CBS Inc., 632 F. Supp. 1344, 1355 (S.D.N.Y. 1986), aff’d in part, vacated in part, 870 F.2d 40 (2d Cir. 1989). James Bond,⁶Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995). Betty Boop,⁷Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 772 F. Supp. 2d 1135, 1147 (C.D. Cal. 2008). Freddy Krueger,⁸New Line Cinema Corp. v. Bertlesman Music Grp., 693 F. Supp. 1517, 1521 n.5 (S.D.N.Y. 1988). Godzilla,⁹Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206, 1216 (C.D. Cal. 1998). Holden Caulfield from Catcher in the Rye,¹⁰Salinger, 641 F. Supp. 2d at 266. Jonathan Livingston Seagull,¹¹Bach v. Forever Living Prods. U.S., Inc., 473 F. Supp. 2d 1110, 1118 (W.D. Wash. 2007). Scarlett O’Hara and Rhett Butler from Gone with the Wind, Tom and Jerry,¹²Warner Bros. Entm’t v. X One X Prods., 644 F.3d 584, 597 (8th Cir. 2011). Walt Disney’s Mickey Mouse and Donald Duck,¹³Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757-58 (9th Cir. 1978). and characters from The Wizard of Oz.¹⁴Warner Bros. Entm’t, 644 F.3d at 597.

The fact that the Batmobile is an inanimate object and not a sentient being doesn’t prevent this protection. Courts have recognized that copyright could protect characters such as “Eleanor,” a 1967 Shelby GT-500 appearing in Disney’s 2000 film Gone in 60 Seconds, and Freddy Krueger’s glove.¹⁵Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1225 (9th Cir. 2008); New Line Cinema Corp. v. Russ Berrie & Co., 161 F. Supp. 2d 293, 302 (S.D.N.Y. 2001).

The most important question facing the Ninth Circuit was whether the Batmobile could be protected as an independent character despite not having a consistent appearance in all works. The car that appeared in the 1966 television show, after all, looked quite different from the car in the 1989 motion picture. But the court did not find this an impediment to copyright protection. It observed that “district courts have determined that James Bond, Batman, and Godzilla are characters protected by copyright, despite their changes in appearance.” And in each instance, it said,

[C]ourts have deemed the persistence of a character’s traits and attributes to be key to determining whether the character qualifies for copyright protection. The character “James Bond” qualifies for copyright protection because, no matter what the actor who portrays this character looks like, James Bond 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.” Similarly, while the character “Godzilla” may have a different appearance from time to time, it is entitled to copyright protection because it “is always a pre-historic, fire-breathing, gigantic dinosaur alive and well in the modern world.”

Having reviewed the existing precedent, the Ninth Circuit synthesized a three-part test for determining when a character like the Batmobile, which may span multiple works and vary in appearance, can be independently protected by copyright.

First, the character must generally have “physical as well as conceptual qualities.” Second, the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance. Third, the character must be “especially distinctive” and “contain some unique elements of expression.” It cannot be a stock character such as a magician in standard magician garb. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard.

The Ninth Circuit then applied this test to the Batmobile, and concluded that the Batmobile met the standard. Its “bat-like appearance” is a consistent theme throughout its appearances in comics, movies, and television shows, making it recognizable as the same character whenever it appears. The character displays consistent, identifiable character traits and attributes; says the court, “No matter its specific physical appearance, the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains,” and it “always contains the most up-to-date weaponry and technology.” Finally, the court found the Batmobile to be “especially distinctive,” noting “it is not merely a stock character.” Having established that the Batmobile is protected by copyright, it was short work to conclude that Towle’s Batmobile replicas infringed on DC’s copyright.

The Ninth Circuit’s holding is consistent with longstanding business practices. Many derivative works, like sequels or tie-ins, rely on the same characters but share no other similarities in terms of plot or expression of existing works.¹⁶Benjamin A. Goldberger, How the “Summer of the Spinoff” Came to Be: The Branding of Characters in American Mass Media, 23 Loy. L.A. Ent. L. Rev. 301, 302 (2003) (“Characters are central to the most common types of recycling and reuse in the entertainment business.”); see also 1 Nimmer, supra note 16, § 3.04[A]. As DC has done with the Batmobile and other Batman characters, it is common practice to license characters for use in new works.¹⁷See, e.g., Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610, 611-12 (2d Cir. 1982) (involving license granting rights to produce original story with the character Tarzan); Fleischer Studios, 772 F. Supp. 2d at 1140 (referencing agreement that transfers interest in, inter alia, “all characters contained therein”). Such practices rely upon certainty, so having courts provide consistent and stable rules facilitates beneficial economic and cultural activities with these characters.