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New Batmobile Decision


by Barry Werbin

A very interesting 1/26/2013 decision out of the C.D. Cal., ruling on cross summary judgment motions, finds in favor of DC Comics (Warner) that the iconic Batmobile® is akin to a “character” protectable by copyright as opposed to an unprotected functional automobile.

The defendant, Gotham Garage, is a manufacturer of television and movie replica vehicles, including full size working "Batmobiles." Gotham and its co-defendant individual owner lost their “useful article” defense. A copy of the lengthy decision is attached (courtesy of the Hollywood Reporter and its watermark on each page [of a federal court PD opinion]).

As the court holds:

“The Batmobile is a character and exists in both two- and three-dimensional forms. Its existence in three-dimensional form is the consequence of the Batmobile’s portrayal in the 1989 live-motion film and 1966 television series. [...] Defendant did not copy the design of a mere car; he copied the Batmobile character. The fact that the unauthorized Batmobile replicas that Defendant manufactured — which are derivative works — may be ‘useful articles’ is irrelevant. A derivative work can still infringe the underlying copyrighted work even if the derivative work is not independently entitled to copyright protection.” 

-- and --

“The Batmobile, and the so-called functional elements associated with it, is not a useful object in the real world, and incorporates fantasy elements that do not appear on real-world vehicles. The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.” The decision also sets forth a detailed history of copyright protection for fictional characters in the 9th Circuit. Note that the first part of the decision addresses trademark infringement and unfair competition claims, also ruling in favor of DC Comics on both counts.