The old adage that “justice is blind” came to mind again last week, but not in a good way. In the latest head-scratching decision from the 9th Circuit Court, a Court of Appeals for the first time has ruled that an inanimate object portrayed in an audio-visual work was in fact a “character” capable of copyright protection. The case, DC Comics v. Towle, 1 pitted the venerable comic book company against a manufacturer of full scale, real-life, working “Batmobiles.”
The defendant, Mark Towle, produced two different models of the Batmobile. The first was patterned after the Batmobile as it appeared in the 1960’s television show Batman. 2 The second was patterned after the Batmobile as it appeared in the 1989 feature film, Batman. 3 He marketed both of the vehicles as “Batmobiles” and utilized the domain name batmobilereplicas.com to help him sell these rather expensive ($90,000) life sized toys. 4
DC Comics sued Towle in 2011 alleging copyright infringement, trademark infringement and unfair competition. 5 Towle defended on the grounds that the Batmobile was not copyrightable, that even if it was, that DC did not own the copyright of the Batmobile as it was depicted in the motion picture and television shows. 6 He admitted copying the elements of the Batmobile from the audio-visual works in question, 7 so all the standard elements of copyright infringement are present, if in fact a car can be protected by copyright. The District Court ruled in favor of DC Comics and Towle appealed to the 9th Circuit Court of Appeals.
The 9th Circuit first dispensed with the defense that DC did not own copyright to the vehicles in question. It ruled that the reservation by DC of all of the merchandising rights to the depictions later made by ABC and Warner Bros. was sufficient to show ownership of the intellectual property. From there, the Court wades into uncharted waters.
Previously, the 9th Circuit had ruled that the car “Eleanor” from the original and remake of Gone in 60 Seconds “might” be eligible for copyright protection as a character. 8 Here, it takes a full blown stand that a car absolutely can qualify as a character. Citing to its previous decision in the Gone In 60 Seconds case, the Court boldly states “Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character…” 9 The problem for the Court is that this particular holding does not appear in the previous ruling at all.
In order to be a protectable character, the Court rules a three part test must be performed.
- The character must generally have “physical as well as conceptual qualities.”
- The character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. If the character has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.
- The character must be “especially distinctive” and “contain some unique elements of expression.” 10
The Court cites to pervious cases involving James Bond, Godzilla and Batman, for the proposition that a character can be the subject of copyright protection. Yet, in all of these cases, the character is a sentient being, and is not, well, a car. Yet the Court rushes toward the conclusion that none of this matters.
“[T]he Batmobile is ‘especially distinctive’ and contains unique elements of expression. In addition to its status as Batman’s loyal bat-themed sidekick complete with the character traits and physical characteristics described above, the Batmobile also has its unique and highly recognizable name. It is not merely a stock character.” 11
Yes, but again, Justices, take off your blindfolds and look at it. It’s a damn car! A fancy car, with an unconventional look, and lots of gadgets, but it is still a car! The Batmobile is not capable of independent action. It can only do what Batman tells it to do. Can you even comprehend Batmobile: The Motion Picture? Yep, two hours of watching the Batmobile parked in the BatCave. Thrilling.
Are we now going to bestow “character” status on James Bond’s tricked out Aston-Martin from Goldfinger? I fail to see how an inanimate object rises to the level of a “character.”
This does not mean that in order to qualify as a character it has to be a living, breathing, being. Certainly we can agree that C-3PO and R2-D2 from the Star Wars movies are characters, even though they are basically robots. They have personalities and are capable of independent action, outside of what Luke Skywalker or Obi-Wan Kenobi tells them to do.
Even further, it would seem clear that the computer HAL 9000 from 2001: A Space Odyssey is a character. Though resolutely calm, it is obvious that he has emotions and feelings, and is certainly capable of independent action. This is shown when he murders Frank Poole and the astronauts in hibernation.
Compare this against two famous objects which fuel all the action in their respective motion pictures. Is the “one ring” from The Lord of the Rings a character? It has “physical as well as conceptual qualities,” it is recognizable whenever it appears across the three films, and its powers, especially its effect on the wearer, are “distinctive” and contain “unique elements of expression.” Yet, as powerful as the one ring is, it could not prevent itself from being tossed into the volcanic pit of Mount Doom.
Is the black bird statue of The Maltese Falcon a character? The entire movie revolves around who can possess this fabulous object. It certainly is instantly recognizable by film fans all over the world. But it is not capable of independent action.
The troubling part is that the 9th Circuit did not have to go as far as it did to reach the same result.
Going back as far as the decorative lamp base from Mazer v. Stein, 12 the Courts have constantly ruled that useful objects can have copyright protection if they have design elements separate and distinguishable from their function. The Batmobile would be the perfect example of this. It has numerous design features that are fanciful, such as the exaggerated “bat-fins” present in both iterations, as well as the “jet fighter-cockpit” motif which surrounds the passengers, and the suggestion that part of the propulsion of the Batmobile is due to rocket power.
The District Court ruled on this very issue, holding “that the 1966 and 1989 Batmobiles were entitled to copyright protection as a sculptural work under 17 U.S.C. § 102(a)(5).” 13 The 9th Circuit, having already decided that the Batmobile is a copyrightable “character,” relegates this ruling to a footnote.
In my mind, a character must be capable of independent action in order to qualify as a “copyright protected” character, otherwise it is simply an object. We have years and years of ample case law to help the Courts determine whether the object has significant aesthetic and fanciful design features, apart from its function, and is thus capable of copyright protection. So, while the 9th Circuit in this case reaches the right conclusion, it does so by injecting another level of complication and uncertainty into the copyright regime, which could use a little bit more of reliance on established case law and simplicity so as to generate more predictable guidelines for content creators and uniform conclusions for the Courts.
- 2015 WL 5569084 citations are to the Westlaw pagination. ↩
- Id. at 3 ↩
- Id. ↩
- Id. ↩
- Id. ↩
- Id. ↩
- Id. ↩
- Halicki Films, LLC v, Sanderson Sales and Marketing, 547 F.3d 1213 (9th Circuit Court of Appeals 2008) ↩
- DC Comics at 5. ↩
- Id. Citations omitted. ↩
- Id. at 6. ↩
- 347 U.S.949 (Supreme Court of the United States 1954) ↩
- DC Comics at 11. ↩