Authored by Jeremy McKinney, October 7, 2015 at 8:52 am

Originally introduced in the Batman comic books in 1941, the Batmobile is a high-tech vehicle that Batman employs in his clandestine crime-fighting exploits. Although the Batmobile has changed in appearance over the years, key characteristics have remained constant, including “bat-like external features,” as well as “futuristic weaponry and technology” that are “years ahead of anything else on wheels.” 

Despite having almost everything necessary for Batman’s crime-fighting needs, on September 23, 2015, the Batmobile received an upgrade: copyright protection. 

Although not specifically listed in the Copyright Act, courts have long recognized that copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, such as comic book characters, contained within the work. In deciding whether copyright protection extends to an element, courts conduct a three-part test. First, the character must have “physical as well as conceptual qualities,” and is thus not a mere literary character. Second, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits” so that it is recognizable over time. And third, the character must be “especially distinctive” and contain some unique elements of expression.

According to the Ninth U.S. Circuit Court of Appeals, the Batmobile meets the test. In DC Comics v. Towle, 2015 U.S. App. LEXIS 16837 (9th Cir. Cal. Sept. 23, 2015), with Judge Sandra S. Ikuta writing for a unanimous three-judge panel, the court affirmed the ruling of the lower court that the Batmobile was entitled to copyright protection. 

Specifically, the court held that the Batmobile meets the first prong because the Batmobile has appeared graphically in comic books as well as three-dimensionally as a car in television series and motion pictures. Therefore, it has physical as well as conceptual qualities that meet the first prong of the test.

 Addressing the second prong, the court found that the Batmobile was sufficiently delineated “to be recognizable as the same character whenever it appears,“ and it has consistent character traits and attributes. “No matter its specific physical appearance,” Judge Ikuta said, “the Batmobile is a ‘crime-fighting’ car with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains.”

 Finally, the court found that the Batmobile “is not merely a stock character.” In addition to its status as Batman’s loyal bat-themed sidekick complete with distinct character traits and physical characteristics, “the Batmobile also has its unique and highly recognizable name.” Accordingly, the Batmobile is “especially distinctive” and contains unique elements of expression.

As for Towle’s arguments, they didn’t get a lot of, well, traction. Towle argued that the Batmobiles he was selling were not the same as those appearing in the comics and therefore, did not infringe any copyright DC may have. In rejecting this argument, the court held “[a]s a copyrightable character, the Batmobile need not have a consistent appearance in every context, so long as the character has distinctive character traits and attributes.” 

Towle also argued the Batmobile at times appeared without its "bat-like" features. Towle, in his court briefs, argued that the Batmobile had shifted shapes over time. In one rendition in the 1980s, for instance, it appeared as an armored tank with a rocket launcher. However, the court held that was akin to James Bond changing from swimming trunks to a tuxedo: It didn't alter the car's innate characteristics.

After holding that the Batmobile was copyright-protected, the court turned to the issue of infringement. Towle’s primary argument in this regard was that DC Comics lacked standing to sue because, if he had indeed infringed a copyright, such infringement related to the TV show and movie, not DC Comics’ comic books. The vehicles he sold were replicas of the Batmobile as it appeared in the 1966 television series Batman, starring Adam West, and the 1989 motion picture BATMAN, starring Michael Keaton, and DC did not own the rights to those productions. DC and their predecessor National Periodical Publications, Inc., licensed the rights to the Batman franchise to ABC for the 1966 TV series, and Warner Brothers for the BATMAN movie. Unique Batmobiles were created for both that were distinct from any depicted in the comics. Therefore, Towle argued, even if the Batmobile was copyright-protected, the designs he copied were distinct and DC could not sue because they did not create them. However, the court held that DC owned the rights to the underlying work and therefore was entitled to “sue a third party who makes an unauthorized copy of an authorized derivative work to the extent that the material copied derived from the underlying work.” Because Towle produced a three-dimensional expression of the entire Batmobile character as it appeared in the 1966 and 1989 productions, and the Batmobile character in each of those productions was derived from DC’s underlying work, the court concluded that “Towle’s replicas necessarily copied some aspects of DC’s underlying works.”

In conclusion, Judge Ikuta quoted the Dark Knight himself: “In our well-ordered society, protection of private property is essential.” For fans still hoping to drive their own 1960’s Batmobile, they can always shell out $4.6 million for the real deal. 

Batmobile image courtesy of Jennifer Graylock (cropped by available here.