RAISING THE BAR “IT’S NOT WHO I AM UNDERNEATH, BUT WHAT I DO THAT DEFINES ME.”
The court explained that the Batmobile has “physical as well as conceptual qualities,” because it was graphically depicted in comic books, the TV series, and movies. So, the Batmobile is not “a mere literary character.” The Batmobile is also recognizable as the same character every time it appears. In other words, since its first appearance in 1941, whether in a comic book, on TV, or in a movie, the Batmobile kept “distinct physical and conceptual qualities” intact. The Batmobile has been consistently “bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.”
BATMOBILE CHARACTERISTICS
In addition, the court explained that when the Batmobile appears, it displays the same character traits and attributes: 1. A crime-fighting car with powerful and sleek characteristics that allows Batman to maneuver quickly while he fights villains. 2. It waits like an impatient steed straining at the reins, shivering as its super-charged motor throbs with energy, before it tears after the fleeing hoodlums. 3. Sometimes it leaps away and tears up the street like a cyclone. 4.Twin jets ignite and flash out with thunderclap force, and the miracle car of the dynamic duo literally flies through the air. 5. It has jet engines and flame-shooting tubes that undoubtedly give the Batmobile far more power than an ordinary car. 6. It has the ability to maneuver, which far exceeds that of an ordinary car (like using its reverse thrust rockets to perform an emergency bat turn). 7. It can enter Batmissile mode—shedding all material outside [the] central fuselage, with wheels and axles that can fit through the narrowest openings. 8. It has up-to-date weapons and technology, a dashboard phone with a hotline that connects to the police commissioner’s office, an alarm that keeps the Joker from stealing the Batmobile, a mobile crime lab inside the Batmobile, a Batscope with a screen, a Batray, machine guns, and bombs. These qualities proved to the court that
the Batmobile displays consistent, identifiable character traits and attributes, and fulfilled the second requirement for character status. The court said that the Batmobile is “especially distinctive,” possesses “unique elements of expression,” and is not a stock character. The Batmobile’s name and role as Batman’s loyal steed fulfilled this last item on the court’s checklist, entitling the car to copyright protection as a character.
Batmobile depicted in the 1996 TV series The Batman
THE FINAL VERDICT
The court shot down Towle’s argument that the Batmobile has been shown without “bat-like” features. For example, in a comic book, the Batmobile appeared as an armored tank, and in a movie the Batmobile became a Batmissile. The court said that changes like these are similar to costume changes and don’t alter the Batmobile’s innate characteristics. In fact, they emphasize the Batmobile’s ability to adapt in order to fight crime. Once the court decided that the Batmobile is a character, Towle’s only argument was that DC Comics didn’t own the copyright, because it had assigned some of its rights in its Batman works. The court found that transferring rights to produce derivative works, as DC has done over the years, didn’t transfer its underlying rights to the Batmobile character, because a copyright in a derivative work “must not in any way affect the scope of any copyright protection in that preexisting material.” When Towle copied a derivative work without authorization, the car maker infringed the copyright of DC Comics, the original copyright owner in the underlying work (the original Batmobile character), by assuming that the replica also copied the original work, which the court established that it did. Finally, although the parties stipulated that each side would bear its own costs and attorney fees, they agreed upon damages of $70,000 to settle the matter. The result could have been much worse for the replica maker, because the copyright statute allows for awarding the attorney fees. »
Howard N. Aronson has provided legal counsel to toy companies for the past 30 years. He is the managing partner of Lackenbach Siegel LLP, an intellectual property law firm recognized for its nine decades of handling toy companies.
Towle’s replica of the Batmobile depicted above
WHAT QUALIFIES AS A DERIVATIVE WORK? Under the Copyright Act, a ’derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. For example, a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work according to the Copyright Office. In order to be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. For example: • A motion picture based on a play or a novel • A translation of a novel • A revision of a published book • A sculpture based on a drawing, a drawing based on a photograph, or a lithograph based on a painting • A drama about John Doe based on the letters and journal entries of John Doe • A musical arrangement of a preexisting musical work • A new version of an existing computer program • An adaptation of a dramatic work • A revision of a website
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