HOLY UTILITARIAN FUNCTION, BATMAN

In a short-lived, much-reviled sitcom of my youth, My Mother the Car, the title character wasimages a restored 1928 Porter touring car, the reincarnation of star Jerry van Dyke’s mother, who spoke to Jerry through the radio and—as per the theme song indelibly lodged in my memory—“helped him through everything I do.” I am not aware of any demand for reproductions of that vehicle, and we will probably never know whether it qualified for copyright protection.  But commerce in reproductions of its much cooler 60s TV-Land contemporary, the Batmobile, has always been brisk, and a U.S. District Court in California has now ruled that it is subject to copyright protection as a “character.”

DC Comics, the owner of trademarks and copyrights covering the Batman franchise, sued Mark Towle (doing business as “Gotham Garage”), who produces and sells replica vehicles based on both the Batmobile as it appeared in both the 1960s ABC television series and in the 1989 Warner Brothers movie, as well as kits that “allow others to customize their vehicles into the Batmobile.”  The court’s summary judgment ruling concludes that Towle’s products infringe numerous DC Comics trademarks, including the “Bat Symbol” seen on the car door in the photo above.  Of much greater interest is the court’s copyright analysis.

The court first considered whether, in light of the fact that the two iterations of the Batmobile at issue were creations of the producers and copyright owners of the TV series and feature film, respectively, DC Comics nonetheless had standing to assert a copyright claim. Finding that DC had contractually reserved the copyright on any derivative works created by the TV and film producers, it went on to consider Towle’s contention that, as a functional utilitarian article, the Batmobile was not copyrightable expression.

Applying the Ninth Circuit’s “character delineation” test, the court asked whether the Batmobile displays “consistent, widely identifiable traits” or “physical or conceptual qualities” that amounted to “unique expression.”  The court answered with an rhapsodic paean to this fictional vehicle:

It is undeniable that the Batmobile is a world famous conveyance in the Batman franchise, exhibiting a series of readily identifiable and distinguishing traits. The Batmobile is known by one consistent name that identifies it as Batman’s personal vehicle. It also displays consistent physical traits. The Batmobile, in its various incarnations, is a highly interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime. Even though the Batmobile is not identical in every comic book, film, or television show, it is still widely ecognizable because it often contains bat-like motifs, such as a bat-faced grill or bat-shaped tailfins in the rear of the car, and it is almost always jet black. … Regardless of the evolving design of the Batmobile, it retains distinctive characteristics. Other than its physical features, the Batmobile is depicted as being swift, cunning, strong and elusive. For example, in the comic book “leaps away and tears up the street like a cyclone.” In the same comic book, the Batmobile is analogized to an “impatient steed straining at the reigns,” shivering “as its supercharged motor throbs with energy . . . and an instant later it tears after the fleeing hoodlums.” The Batmobile participates in various chases and is deployed to combat Batman’s enemies. The comic books portray the Batmobile as a superhero. The Batmobile is central to Batman’s ability to fight crime and appears as Batman’s sidekick, if not an extension of Batman’s own persona.

The court went on to consider, in the alternative, what would seem to be the more straightforward argument for copyrightability, i.e., that the Batmobile is, apart from its utilitarian aspects, a “pictorial, graphic or sculptural” work.  It would not seem difficult to parse the functional from the fanciful and aesthetic aspects of the Batmobile, and eventually the court did that, but first it expressed its great umbrage at Towle’s suggestion that the Batmobile “was just a car”:

In all of the fictional works, the Batmobile is deployed as Batman’s mode of transportation. However, the Batmobile is entirely distinguishable from an ordinary automobile. The Batmobile is a fictional character tied to the fictional Batman character. The Batmobile is a crime fighting weapon and used to display the Batman persona. The Ba tmobile, 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. Additionally, Defendant’s argument that Batman is merely a car wholly fails to capture the creativity and fantastical elements that stand apart from the fact that the Batmobile also happens to look like a car.

The court, it seems, has quite a crush on the Batmobile.  Sure it is fictional, but as Billy Wilder wrote long ago, you can’t have everything.

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