Amongst the very old school and traditionalist judgments here in the UK, it is always refreshing to read ones that step outside of that dusty judicial demeanor, and often our friends across the pond in the US show us that even judges remember their youth with fondness. Seemingly, as was the case in the recent US Supreme Court judgment in Kimble v Marvel [Katposts here and here], this emerges through cases involving superheroes, and a recent Ninth Circuit decision involving Batman was no exception.
The case of DC Comics v Mark Towle 2:11-cv-03934-RSWL-OP (accessible here) dealt with the copyright protection of the Batmobile, ever-present in the Batman saga, and its infringement through the making of replicas of specific versions of the aforementioned Batmobile [of the full-size variety, not merely toys]. As exclaimed by judge Ikuta, delivering the court's judgment; Holy copyright law, Batman!
|Quickly, to the Katmobile!|
The first claim dealt with by judge Ikuta was whether the Batmobile would be afforded copyright protection under US law ["to the Batmobile!" she exclaimed].
Through an extensive discussion of precedent surrounding comic book characters and protection afforded to them, judge Ikuta laid down a three-part test in assessing whether a character (or in this case, vehicle) would be afforded copyright protection. First, the character must generally have physical as well as conceptual qualities [meaning it has to not simply be a literary idea, but manifest itself in a physical and/or conceptual manner, such as in images, movies etc.]; second, the character must be sufficiently delineated to be recognizable as the same character whenever it appears [this need not be in terms of appearance, but through their character, personality etc.]; and third, the character must be especially distinctive and contain some unique elements of expression [in other words, not be a generic character with generic elements in their representation].
|Some Kats have a secret alter-ego...|
As a final step the Court looked at whether Mr. Towle's replicas had in fact infringed on DC Comics' rights in the Batmobile. Both parties had no contentions over whether the cars were actual replicas of the two versions of the Batmobile. Mr. Towle argued that, as the Batmobiles features in the 1989 movie and the 1960s TV show were derivative works, he did not infringe on DC's rights in the underlying work. Judge Ikuta quickly dismissed this, stating that "...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". No rights were transferred as a part of the licence agreements for the two derivative works, and therefore Mr. Towle had infringed DC's copyright through making his replica vehicles. This was deemed to be the case even though the two versions of the Batmobile differed from their depiction in the comic books.
The case was an interesting one, at least to this Kat. The Batmobile has been depicted in a variety of forms over the years, and when comparing the Batmobile in the recent Dark Knight movie, and, for example, the 1960s TV show version, it is hard to say they are cut from the same cloth. Even so, based on a US law argument the decision seems right [although this Kat invites anyone who might disagree to let him know why], and as judge Ikuta ended, quoting Batman: "[i]n our well-ordered society, protection of private property is essential".