August 17, 2016

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George Barris, the creator of the 1966 Batmobile and many other classic custom cars, died at the age of 89 last fall.  Barris and his brother opened Barris Kustoms in Los Angeles after World War II, and their unique and creative customizing work on cars brought them attention in the Southern California auto scene.  Success in the film and television business, however, made Barris truly famous.

In addition to the Batmobile used in the 1960s television series, Barris also created the well known vehicles used in The Munsters and Knight Rider.  Three years ago, the original 1966 Batmobile sold at auction for $4.62 million.

Four months after Barris’s death, the U.S. Supreme Court let stand a lower court ruling that the 1966 Batmobile’s bat-like appearance and futuristic gadgetry made it a character that could not be copied without permission from the copyright holder, DC Comics.

That copyright infringement lawsuit had been brought by DC Comics against Mark Towle, d/b/a Gotham Garage.  Towle produced replicas of the 1966 Batmobile, which he sold for $90,000 apiece.  Towle admitted that he had copied the Batmobile (how could he deny it?), but argued that it was not subject to copyright protection.  The federal district court held that the Batmobile was a character entitled to copyright protection, and the Court of Appeals for the Ninth Circuit affirmed.

Generally, literary characters are not copyrightable.  As the Court of Appeals explained, however, courts have recognized that copyright protection can extend to “sufficiently distinctive” characters in comic books, television, and film, when the character has physical as well as conceptual qualities and unique elements of expression.  The court noted that in other cases the courts had held James Bond, Batman, and Godzilla to be protected by copyright, because those characters were “especially distinctive, sufficiently delineated, and displayed consistent, widely identified traits.”  For example, in the case of James Bond, the character qualifies for copyright protection because, no matter which actor portrays him, he always maintains “his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred’; his ‘license to kill’ and use of guns; and his sophistication.”

Applying these principles to the Batmobile, the court held that it had physical as well as conceptual qualities, had consistent and identifiable character traits, and was especially distinctive with unique elements of expression.  The bat-like external appearance, high-tech gadgets and weapons, jet-black color, and fact that it “is always depicted as being swift, cunning, strong and elusive,” all combined to make the Batmobile a unique and highly recognizable character, and therefore protected by copyright.

The court of appeals concluded with this apt observation:  “As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’”