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26 November 2015CopyrightSusan Kayser

‘Physical, conceptual, distinctive’—why the Batmobile is copyrightable

For “Batman” and other comic book fans, it does not come as a huge surprise that the Batmobile is a character entitled to copyright protection. Indeed, the Batmobile is a fictional, high-tech automobile with key characteristics such as “bat-like external features, ready to leap into action to assist Batman in his fight against Gotham’s most dangerous villains, and equipped with futuristic weaponry and technology that is ‘years ahead of anything else on wheels’”, according to the US Court of Appeals for the Ninth Circuit in DC Comics v Towle in September.

While the ninth circuit had previously held that a car that lacks sentient attributes may have copyrightable qualities, the Batmobile case is the first to hold that the automobile character was indeed a copyrightable character. The Batmobile met a three-part test for determining whether a character in a comic book, television programme or motion picture is entitled to copyright protection—just as characters such as Mickey Mouse, Superman, and Betty Boop have all previously been afforded copyright protection.

But what if the character changes over time, such as with the Batmobile? The original 1941 Batmobile bears little resemblance to the Batmobile seen in the 1966 television show “Batman” and the 1989 film “Batman”—which were at issue in the case, as the defendant Mark Towle produced Batmobile replicas based on these productions. Fortunately for DC Comics, there was already precedent for the protection of characters such as James Bond, Batman, and Godzilla, all of whom have been protected by copyright, even though they have changed in appearance over time.

The key is that there are distinctive character traits and attributes, even if the character does not maintain the same physical appearance in every context. Indeed the court noted that a consistent appearance is not as significant as the consistent character traits, and likened the difference in the appearance of the Batmobile over time to a “costume change” that did not alter the Batmobile’s “innate characteristics” any more than James Bond’s change from blue swimming trunks to his classic tuxedo affected Bond’s iconic character.

In analysing precedents to create a three-part test for determining whether the Batmobile character was entitled to copyright protection, the court found that the Batmobile met all three parts. First, the Batmobile has “physical as well as conceptual qualities” and is not “merely” a literary character since it has appeared in both comic books and as a three-dimensional automobile on television and film. Second, the Batmobile is “sufficiently delineated” and recognisable as the same character whenever it appears.

“Finding that the Batmobile is a copyrightable character does not mean that any car will be considered a copyrightable character.”

While the Batmobile has changed in appearance over the years in the comic books, television series, and films, it has maintained distinct qualities, both physical and conceptual. Specifically, the Batmobile is a crime-fighting, quickly-manoeuvring car with a “bat-like” appearance that always has the most up-to-date or futuristic crime-fighting weaponry and technology. Third, the Batmobile is “especially distinctive” and “contain[s] some unique elements of expression” as it acts as Batman’s sidekick, and has character traits and physical characteristics, as well as a unique and recognisable name.

A step too far?

Does the decision go too far, however, in holding that a car, which “lacks sentient attributes and does not speak”, is a copyrightable character? One could easily see how Mater and Lightning McQueen from the movie “Cars” would easily be classified as copyrightable characters, but these characters have sentient attributes as they are able to feel, as well as speak and socialise with one another.

This decision recognises that a car that lacks sentient attributes can still have features that distinguish it as a character separate from any other car or merely a useful article. Speaking, hearing, or empathising is not required provided that there are: (1) distinct physical and conceptual qualities in the appearance; (2) consistent character traits and attributes (such as being a sleek and powerful machine that can manoeuvre differently from an ordinary car), and is sufficiently delineated and recognisable as the same character whenever it appears (even though the appearance changes over time); and (3) is “especially distinctive” with unique elements of expression.

Copyright protection in characters stems from the Copyright Act of 1976 through literary works, visual art works, or a work of the performing arts, and was confirmed in the “Copyright Compendium”, which states that “although the copyright law does not protect the name or the general idea for a character, a work that depicts or describes a particular character may be registered if it contains a sufficient amount of original authorship”.

Finding that the Batmobile is a copyrightable character does not mean that any car will be considered a copyrightable character. To be capable of copyright protection, an automobile character must have physical and conceptual qualities that display consistent, widely identifiable traits, and be especially distinctive. Scènes à faire and stock characters would apply to an automobile character analysis just as easily as any other character. Imagine a police movie filled with police cars; the dozens of cars parked at the police station would simply be classified as scènes à faire as they would be commonplace elements in a police scene. Even in a movie that centred around a pair of policeman riding in a particular police car throughout the movie, unless the police car contained the distinctive characteristics to meet the ninth circuit’s three-part test, it would not be afforded copyright protection.

Copyrightable subject matter has expanded multiple times since the adoption of the constitution. While the constitution broadly stated that “The Congress shall have power to ... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”, copyright has since been extended in subsequent statutes.

The Copyright Act of 1976 includes a list of subject matter entitled to copyright protection, and copyrightable subject matter has expanded in interpreting this act to include computer software, three-dimensional products such as jewellery, and even the law student’s dreaded bar examination.

Expansion in copyrightable subject matter is still up for debate today in matters like fashion design—and even automobile characters.

Susan Kayser is a partner at  Jones Day. She can be contacted at: skayser@jonesday.com

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8 March 2016   It’s a quest for justice you’re unlikely to see in any "Batman" comic, but yesterday DC Comics completed its fight to secure copyright protection for the Batmobile.