Warner Bros.

Wins Lawsuit Against Maker of Batmobile (Exclusive)

A California judge rules that the owner of an auto shop "did not copy the design of a mere car; he copied
the Batmobile character."

BY ERIQ GARDNER

Warner Bros. has scored a big win in a lawsuit against Mark Towle, a California resident who operates
Gotham Garage, which specializes in customizing replicas of automobiles featured in various films and
TV shows.

Towle was taken to court for violating trademarks and copyrights on replicas of the Batmobile, which set
off a furious dispute over whether a car is entitled to copyright protection. The defendant objected to
the contention, saying in court papers in December that a ruling that afforded the studio the ability to
stop reproduction and distribution of a famous car would have “a significant impact on automobile
makers and manufacturers.”

Guess what?

In an extraordinary 54-page ruling Thursday, U.S. District Court Judge Ronald Lew writes that “it is clear
that the Batmobile is a copyrighted character.”

Read the Ruling Here

The Batmobile first appeared in comic books in 1941, two years after Batman was introduced. Since
then, the car has undergone many transformations. In the 1960s, George Barris built one for the 1960s
ABC series Batman, basing his designs on a 1955 Lincoln Futura concept model. In 1989, when it came
time to make a film based on the Batman franchise, production designer Anton Furst made his own
model and assigned rights to the studio.

The defendant, represented by attorney Larry Zerner, argued that a judge should be careful about
deeming automobiles as copyrightable.

U.S. copyright law doesn’t allow “useful articles” to be copyrighted, but it does allow elements that are
conceptually separable from the utilitarian aspects to gain protection. The problem, argued Zerner, was
that Warner subsidiary DC was claiming that pretty much the entire body of the Batmobile — including
the front grill, the fenders, the wheels, the fins, the cockpit and the exhaust pipe — fell under such
protection.

“The implications of a ruling upholding this standard are easy to imagine,” wrote Zerner. “Ford, Toyota,
Ferrari and Honda would start publishing comic books so that they could protect what, up until now,
was unprotectable.”

On Thursday, the judge delivered his answer.

“The Batmobile is a character and exists in both two- and three-dimensional forms,” Lew wrote. “Its
existence in three-dimensional form is the consequence of the Batmobile’s portrayal in the 1989 live-
motion film and 1966 television series.”

Lew continues, “Defendant did not copy the design of a mere car; he copied the Batmobile character.
The fact that the unauthorized Batmoble 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.”

The judge then explains why he is affording the Batmobile the upmost respect and why the car featured
in comic books, television series and films is more than just functional. He says that the “so-called
functional elements” — such as fictional torpedo launchers and an anti-fire system — are only functional
in that they help Batman fight crime.

“Thus, the Batmobile’s usefulness is a construct,” he wrote. “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 judge also went into the particulars of the Batmobile to single out what’s conceptually separable
such as the “Batmobile’s entire frame, consisting of the rear exaggerated, sculpted bat-fin and the
mandibular front,” which he says “can stand on its own without the underlying vehicle.”

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The judge ultimately ruled that not only is the Batmobile copyrightable but also that Towle has copied
the 1966 and 1989 Batmobiles. Further, he also grants the plaintiff’s motion for summary judgment on
the allegation that Towle has infringed the trademarks on the Batmobile. Among the factors that
contributed to the victory on the trademark side was that Towle used Batman marks in his advertising,
that the bat design marks are “distinct,” that most of Towle’s customers asked if he had a relationship
with Warner Bros., that the studio has licensed toy versions of the Batmobile and that a “strong
possibility” exists that the studio “will expand its business to compete” with the custom builder of
Batmobiles.

Lew said there are “no triable issues of fact … as to whether Defendant’s use of Plaintiff’s marks is likely
to confuse United States consumers.”

The plaintiff was represented by J. Andrew Coombs.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner