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The Batmobile Gotham deserves

Print publication

18/11/2015

The US case of DC Comics v Mark Towle, recently determined by the Ninth Circuit, was concerned with copyright in the Batmobile. The Batmobile has been featuring in comics since the 1940s and, more recently, in television adaptations and in the Batman films. DC Comics is the publisher and copyright owner of the comic books featuring Batman. Subsequent screen appearances have been under licence.

The dispute arose from the making of unauthorised replicas of the Batmobile by the defendant. DC Comics issued proceedings for copyright and trade mark infringement, claiming that the defendant sold the replicas with the clear intention that they be associated with the Batman brand.

The first issue for the judge was what sort of copyright protection was available to a comic book character (or, in this case, vehicle). The judge set out a three-part test:

  • Does the character have physical as well as conceptual qualities? In other words, does it exist other than as a literary concept, e.g. it has been depicted in films?
  • Is the character sufficiently delineated to be recognisable as the same character irrespective of where it is depicted?
  • Is the character especially distinctive and does it contain some unique elements of expression?

The answer in each case, in respect of the Batmobile, was affirmative. It clearly had conceptual and physical qualities and, notwithstanding some changes to its appearance since its first appearance, it had at all times remained clearly “the Batmobile”. The vehicle contained unique elements, including its distinctive name and its status as part of Batman’s crime fighting armoury.

The defendant relied in part upon the defence that his works were themselves copies of derivative works rather than the real thing but the judge had no truck with this argument, stating: “… if the material copied was derived from a copyrighted underlying work, this will constitute an infringement of such work regardless of whether the defendant copied directly from the underlying work, or indirectly via the derivative work”.

Featuring technical discussion worthy of a comic book convention, the judgment is required reading for Batman fans (as well as copyright fans), even if solely for the “Holy copyright law, Batman!” comment.

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