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The Copyright Battle Over Custom-Built Batmobiles
Hugh Pickens writes writes "Eriq Gardner writes that Warner Brothers is suing California resident Mark Towle, a specialist in customizing replicas of automobiles featured in films and TV shows, for selling replicas of automobiles from the 1960s ABC series Batman by arguing that copyright protection extends to the overall look and feel of the Batmobile. The case hinges on what exactly is a Batmobile — an automobile or a piece of intellectual property? Warner attorney J. Andrew Coombs argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning and that by selling an unauthorized replica, Towle is likely to confuse consumers about whether the cars are DC products are not. Towle's attorney Larry Zerner, argues that automobiles aren't copyrightable. 'It is black letter law that useful articles, such as automobiles, do not qualify as "sculptural works" and are thus not eligible for copyright protection,' writes Zerner adding that a decision to affirm copyright elements of automotive design features could be exploited by automobile manufacturers. 'The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.'"
I would argue the automobile is a sculpture, and therefore protect-able from exact replication using blueprints/tooling. However, like any work of art, it is an interpretation by the artist. If I make a Batmobile-looking car I am making what my interpretation of the Batmobile is, it's not the same as making a Batmobile. As long as I do not sell the item claiming it is, in fact, a real Batmobile or use trademarked brands on the car or in it's promotion then I should be okay.
And Toyota Boy. He's not as cool, but he's reliable.
"The Exploding Pinto Man and His Bubbly Sidekick Pacer"
Worst. Comic. Ever.
Something you can't competitively provide to the public?
our childhood.
Warner attorney J. Andrew Coombs argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning
but
Towle's attorney Larry Zerner, argues that automobiles aren't copyrightable.
Since something need not be capable of protection by copyright to be capable of protection by a trade mark (a single word, for example) and since something need not be a trade mark to be eligible for copyright protection (this eliminate pretty much everything which is protectable by copyright today), Zerner's statement may be true as a matter of law, but it does not address the Warner's claim.
How come we don't see car companies produce knock-offs of each other's products? It happens in software and massive numbers of other consumer products. What prevents Chevy from copying the Ford F-150? Certainly they take each other's ideas, but you don't see wholesale copying.
Heh heh heh. Toyota could publish a comic book of "Captain Earth, and the Earthketeers", featuring the 42 MPG EPA, seven seating Prius+, the small, nimble Prius c for small group travel! Watch them battle the Real Estate developer, Loot en Plunder, from his evil Hummer! See them bring the Sonata driving Sludemaster, to court to fess up for his lies!
IANAL, but even fro ma practical standpoint... I see it being fuzzy.
I imagine it falls somewhere between kit-cars and merchandise. Also, I imagine the Batman Logo would hurt it. If it had THAT, then DC would tear them a new one. Without it? Hard to say.
For example, let's say you start selling sculptures of model X-Wings / Millenium Falcons / Enterprises / Battlestars / etc. without first getting permission / approval / licenses. Well, you'd be violating a bunch of copyrights / trademarks / etc. and would be very open to a lawsuit. Lucas and the rest of them could tear you a new one if they wanted to.
Now let's say you copy (EXACTLY) a 2012 Ferrari. I don't mean "it has similar lines as a Ferrari" but you start selling it exactly the same (or as close as possible). Similar specs / HP, same body, the flippin' Ferrari logo. You'd probably also be hit with a lawsuit. Without the logo you'd still have trouble, but the logo would open up a whole new case of issues.
But let's say your car is just really similar... like it has a near-indistinguishable front and rear as another car. For example, around ~2006 some manufacturer (I think Toyota) copied a LOT of the body styling of the Cadillac CTS. The first company could probably go after you if you copied something very original or ground-breaking... but I imagine it would be a toss-up.
And then you have kit-cars, where you can sell kits that let enthusiasts build their own cars: Model Ts, small popular sports cars from the 50s, etc. But I don't know if the sellers have to buy a license / get approval / etc. before selling the kits.
you must be new here...
.... who thought this was going to be about BeOS?
Cam Corvette, charismatic leader
Johnny Pinto, able to burst into flame
Suzy Smartcar, tiny but strong
and of course, The VW Thing
If Slashdot were chemistry it would look like this:Cadaverine
is not what's irrelevant, it's that he/ she is an art student. What would matter is if he were successfully selling art, then he'd be a professional artist and to some extent, an expert in that field. Having said that, it is open to interpretation. The law defines fine art (correct if I'm wrong) if it sells in limited quantities - say 50 I think. Beyond that, it's considered commercial art and different sales tax applies. But there are cases when an artist, who is regarded as such by the fine art community, steals from another genuine artist and copyright law is invoked (see Richard Prince vs. anything really).
Anyways, art is murky and not as well-defined as you think it is. It's as complicated as defining "life" in abortion vs. pro life cases. I think what you're having a hard time distinguishing is the application of copyright law in fine art vs. commercial art.
cheers.
By the same argument, the studios like Warner are liable for every time they depict an existing vehicle. Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang? How about some guy's tricked-out bike? And they've got deeper pockets to hit than some guy in a garage.
It's not like Warner is selling their own cars these guys compete with. What's the point of pissing off your fanbase?
If this lawsuit does establish a new intellectual property right, Warner could be in big trouble.
The 1966 Batmobile is a modified Lincoln Futura concept car from 1955. As this is a brand new type of property right, it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company. If they win, Warner could not stop clones, as Ford would be the rights holder, not Warner... and Ford would be able to bill Warner for the use of their 'sculpture' in all the toys, films, TV shows that have used it over the years.
A pizza of radius z and thickness a has a volume of pi z z a
If you read the article, this is basically a trademark battle, with some copyright FUD thrown in for good measure.
Trademark is basically about fraud - would a reasonable person think that they have bought an official Batman car, or just a unofficial replica? So, Warner may or may not have a case, depending on how these are marketed and sold. However, what I think Warner is really trying to do is to spend Mr. Towle under the table, and they are likely to be quite successful in that.
Hollywood will love it when they have to pay a licensing fee for every car in every shot in a movie - retroactively of course.
And then there's this from TFS:
Trademarks have to registered with the PTO or they do not exist - looks to me like he's making this up.
Maybe DC wants to protect a revenue stream from licensing the Batmobile for full sized vehicles?
I'm a consultant - I convert gibberish into cash-flow.
or put a bumper sticker on it... And then it's your interpretation of a Batmobile, and it's a new work of art, and it's copyrightable by you under fair use laws.
Or, every automaker can sue Warner Brothers every time they use a car in a movie. It works both ways.
Funny story BTW, about Herbie the Love Bug... VW initially didn't *want* Disney to use a beetle in the movie. They thought it was going to hurt sales. Instead, it had the opposite effect. When the "remake" came around with Lindsay Lohan, VW was all for it this time around, even bringing the tricked-out "NASCAR" version to the AutoShow at the Javits Center in NYC, and giving away posters for the movie.
If telephones are outlawed, then only outlaws will have telephones.
How has this not come up before, given the decades' worth of fan-made movie and television prop replicas being sold at conventions and websites around the world? I can remember seeing Star Trek props made from the "original molds" on dealer tables twenty-five years ago - has Paramount been going after these folks for copyright/trademark violations all along? Or is this case different because it's a car?
Yesterday I was reading up on the Mustang car, and ran across this at wikipedia:
The popularity of the second film revived the popularity of "Eleanor." A number of car shops started to produce "Eleanor" (custom Fastback Mustang)tagged replicas, and Denice again had to resort to legal action to protect the trademark. In 2008, Denice Shakarian Halicki won a case copyright Eleanor Character image against Carroll Shelby, who had been selling "Eleanor" replicas. 2008 Appeal court states that "Eleanor" is copyrighted Character and that includes her image.
from: http://en.wikipedia.org/wiki/Eleanor_%28automobile%29#Legacy
So, would this be a precedent? First its mentioned as a Trademark case(does Warner have that on the batmobile?), and later a Copyright case concerning the image of the car.
http://www.gothamgarage.net/mach5.html
"Be forewarned that if you are gullible enough to purchase an illegally molded copy of Mark Towle's Mach 5, you are certain to experience legal entanglement with the Mach 5 franchise and experience the total loss of your investment!"
I'm sure the copyright has expired on that opera.
If they're going to print comic books, they'll need to be *about* the sort of character that'd drive those cars.
;-)
The Vauxhall Astra could get Thirtysomething-married-with-two-young-children-in-the-back-seats-Man.
The Ford Transit gets White Van Man, obviously.
With its contrived, overstyled appearance, the Nissan Juke looks like that puppet from the Saw films, though in reality our hero^w villian driving it would be Twenty-or-Thirtysomething-twonk-with-a-moderate-amount-of-disposable-income-to-spend-on-crappy-"lifestyle-oriented"-pretend-4x4-toy-vehicles-demographic-Man (or -Woman).
The possibilities are endless, problem is that 99% of cars will look like they should be driven by Boring-Stuffed-Shirt-Man or Dull-Suburban-Mother-Woman (er, because in reality... they are).
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
http://www.gothamgarage.net/mach5.html -"Be forewarned that if you are gullible enough to purchase an illegally molded copy of Mark Towle's Mach 5, you are certain to experience legal entanglement with the Mach 5 franchise and experience the total loss of your investment!"
What the summary said: publish a comic book to ensure possession of intellectual property rights over automotive concepts.
Who needs step 2 and 3 anyway?
There have been more Batmobile designs, in the Movies and the comics than there have been versions of the USS Enterprise
I did see the one from the Adam West TV series at ValleyCon a few years ago.
[from The Fine Summary]The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.
Warner Bros and DC Comics have little to fear if Ford, Ferrari, Chevrolet, or Hyundai start publishing comic books. But if Honda or Toyota go this route, well, that would be very hard to compete with. No matter how many Captain Vanilla look alikes the USA, Korea, or Europe produce, none of them would stand a chance against the Sailor Moons of the Japanese manga artists.
It would be the Stay Puft Boy against Godzilla in Willy Wonka's factory. It would be a disturbance of the Farce, like tens of thousands of Girl Scouts giggling out loud and then silent. The whole industry would be s'mored.
Will
Will the citizens of Gotham be safe from arch criminals impersonating the caped crusaders?
Will Batman and Robin start driving a Prius?
Will Batgirl finally show us her tits?
Find out tomorrow. Same Bat time. Same Bat channel.
I seem to recall that various companies which customized Mustangs to look like Elinor from the original Gone in Sixty Seconds were successfully sued in the past.
Maybe is was because they actually marketed it as "Elinor", and I think put the name somewhere on the vehicle, that cinched that case. Not sure.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
Are they asserting copyright? That is very strange. There are things called "design patent". Essentially it patents a "form" of an object. Like a particular floral pattern on a door knob or something. It does not prevent others from making door knobs. Just gives the rights holder the right to prevent others from making an exact replica or something very close. Very heavily used in garment industry, and chinaware cutlery side of things. I am surprised the comics is going after copyright claims.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
First off, I am not a lawyer. Now on to my blabbering.... :)
As SeaFox mentioned in an earlier reply, an exact replica of a custom-designed car is probably protected by copyright and possibly by trademark.
The Batman logo itself is almost certainly a trademark and copyright violation and its presence may tilt the balance on a "close case" as to whether the entire car is a trademark violation. About the only way I can see around the trademark issue is to show that the mark is not going to confuse people. While it can be done - when I see an Andy Warhol "Campbell's Soup Can" artwork, I think of Warhol, not soup or the soup company - it's not easy.
Purely artistic elements like ornamental markings are probably much easier to claim protection for than functional elements. Functional elements would likely have been covered by long-expired patents, or not at all. "Simple" artistic elements, like the color black or the particular shade of orange, will be very hard to claim as a trademark and all but impossible to claim under copyright.
The real question may be whether the elements are protected under copyright, trademark, both, or neither:
Trademark on the 1960s-era vehicles is likely very weak or non-existent due to abandonment issues and "lack of confusion" issues.
Copyright for other than an exact replica or truly unique features will be very difficult to claim. Looking at the photo in the Hollywood Reporter article, I see several design elements that may or may not be unique to the "1960s Batmobile(s)," including:
I'm sure there are other issues I missed.
If this goes to court and is appealed, it will be interesting to see what the appellate court says and how that affects copyright and trademark going forward.
My hope is that it doesn't go that far:
I hope Warner Brothers' executives see a PR opportunity in the making and enter into a cross-marketing and publicity agreement. Win-win.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
In the past Trade mark has been used by automobile companies to prevent look a likes ...
In the 1970s There was a fiberglass replacement bonnet for VW type 1 (Bug) that had a Rolls Royce grill. Later in the Early 1980's there was a a fiberglass front end for convertible Mustangs that resembled a Mercedes SL. these products were removed from the marked via ligation.
The RR VW grill was a flagrant violation (had RR marking and symbol on grill work), the SL ford conversion I don't remember the detail, I thought the MB star was changed to a cross, not sure.
You may like your own. You may like those who have done you or your friends and family a favor. You may (still) like your friends and family members if they become one. You may like the exceptional one (e.g. "that Congressman who cares more about the little guy than getting re-elected," EFF's lawyers).
But as for lawyers in general and Congresspeople in general, public opinion is pretty low.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
If the "replica Batmobile" is first and foremost a car, then you have a point.
If it's first and foremost a "work of art" that also happens to be a car, then your point is greatly diminished.
I've been to car shows that had cars with exquisite custom paint jobs and other modifications that clearly made them first and foremost a work of art. Yes, they were still cars. Yes, the government still required license plates. But the only "driving" use was to get them on and off of the tow vehicle at car shows and at their storage facility, maybe some driving in parades and the like, plus maybe a few miles a month just to keep the mechanical parts working.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Did anyone notice the legal document has wrong dates? Bottom of the first page: "This motion is made following the L.R. 7-3 conference of counsel which took place on August 21, 2013"
Evil Publisher: How can you copyright something you can't competitively provide to the public.
Young Author: Oh I guess you're right. I should have listened to that Anonymous Coward.
A few years later, not-so-young former author gets wise to the concept of "if you right it down, it's under copyright" and sues, this time with lawyers backing him up.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
In the United States at least, we have "fair use" and other exceptions to copyright law.
Mass-market items whose use is minor and incidental to a film are (almost?) always okay.
The "tricked out bike" may be another story, but if it's use is minor and purely incidental there may not be any issue either. But I'd check with a lawyer on this one.
Besides, if VW sues a movie studio because there was a Bug in the background, you can bet there will never be another VW car in any movie for years to come. Does VW really want that?
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
:Sigh:
Exactly the point I was making. The AC was asking how can you have a copyright if you can't competitively provide it. Following that logic, a copyright wouldn't be enforceable if the owner couldn't do anything competitive with it.
I was using an example of how silly that is: leaving it as "oh well, you win... because I couldn't compete"
Obviously, in real life, the kid gets a lawyer and sues the living **** out of the publisher. Because that's what the copyright is there for.
Holy Nuisance Suits!! POW!! Patent Troll uses trademark law and patent disputes like kryptonite to disarm our Hero, CRASH!! leaving Bruce Wayne naked and barefoot. BAM!! POW!! Tune in next week, same [Delete]-time, same [Delete]-channel!!
Gently reply
but i'm with warner bros. on this one.
guy wants to make replica batmobiles... get a license from warner bros. to do it.... and warner bros. shouldn't be dicks about it either (but they do need to protect their legal backsides, as well as their batman property).
oh, yea.. guy needs to follow all safety standards and regs, too... as automobiles do have a shit ton of them, and take responsibility when one of his modifications causes an accident... how's his insurance policy? cuz if something happens, warner bros. will get sued (duh, cuz it's a batmobile).. and their army of lawyers is gonna bring the hammer down on the guy that made and sold it.
Is stagnant and will stay that way many years to come. Copyright must end in a timely matter like they use to so someone can bounce off them and move it forward not just be some cash cow for a company that has long stopped actively working with it.
It should have been the cat mobile the space mobile of bats you name it but it just sits until it is useless to all.
We need to end the forever extensions and put it back the way it was from the start. They were good rules that let other pick up the ball from last down.
By the same argument, the studios like Warner are liable for every time they depict an existing vehicle. Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang? How about some guy's tricked-out bike? And they've got deeper pockets to hit than some guy in a garage.
Any old VW bug no. An off-white VW bug with a red-white-blue racing stripe and the number 53 in a white circle, different story. Similar reasoning applies to the Batmobile; it has distinctive elements that are copyrightable.
Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang?
I've seen programs, i.e. Mythbusters, fuzz out the nameplates of cars. In regards to studios such as Warner, I think they do want to open this can of worms. They seem to do more stuff with lawyers instead of stuff with writers and directors (actors go into politics) so whether it is beneficial or not, they will dive into copyright battles.
Hey, we now have car analogy such as what AC posted earlier: Ferrari Man and Toyota Boy. And a top 5 rated comment by paiute, "Working on the new Fantastic Four"
mfwright@batnet.com
If the law was as they wish, then black cars with fins would have already been copyrighted when they built the original Batmobile.
They are asking for an interpretation of the law that lets them drink from the well, without feeling any obligation to replenish that same well.
A great deal if you can get it. I can understand why they would try to go for it. Let's just hope the judge slaps their wrist instead of the alternative.
I think you will find that car manufacturers want their cars to appear in movies, and probably pay the studios to include them, or at least give them the cars for free or at a reduced price so that they will use them.
> by arguing that copyright protection extends to the
> overall look and feel of the Batmobile
" 'Oh, what a tangled web we weave...', isn't that right, Boy Wonder?"
"Golly, Batman!"
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
I've often wondered why they do that kind of thing. I've kind-of come to the conclusion it's so they don't upset potential sponsors (especially competitors of the fuzzed out item). If you're Pepsi, what's the point of paying a bunch of cash for a thirty second spot if the dude on the show is drinking Coke throughout?
YOU'RE a Towle.
Sorry couldn't resist. Yawn. Another story about bitches trying to "protect" their imaginary property. Isn't someone ethnically cleansing someone else right now, while these guys are worried about whether some moron with more dollars than brains might confuse a product someone is selling with their version that NO ON is selling?
Such a gas, really.
I just assumed it was so they could digitally replace them with different product-placement ads each time the show is re-run.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Replying to my own post:
A couple of commenters have the point of view that if something can drive and is street-legal then it's primary purpose in life is to be a car.
I disagree.
Had the designers of the Cadillac Ranch used running cars (the Wikipedia article isn't clear if they did or not) AND they added custom tailfins and paint-jobs, I think it would be clear to everyone that even if the individual cars' primary function was to be a car, it no longer is, even if the cars could be easily made to run again by removing them from the ground, undoing any damage caused by them being nearly upright and half-buried, and putting in fresh fluids.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
It is interesting that the very first sentence in the argument by DC comments is provably false. That doesn't bode well for their argument as a whole.
"Defendant Mark Towle, an individual and d/b/a www.gothamgarage.net(âoeDefendantâ), is an individual who usurps the creative talents and commercial exploits of others, namely DC Comics, its employees, and licensors and licensees"
DC Comics is a business. An abstraction. A corporation. A concept. An idea. An idea does not have creative talents. Human beings can have creative talents, ideas do not, and businesses do not. The licensors and licensees of DC Comics may or may not have creative talents. The sentence, as written, contains false elements, and thus must be considered false when taken as a whole.
Then there is "commercial exploits". How does one usurp a commercial exploit? One may usurp a throne, or a right, certainly, but a "commercial exploit"?
Here's another interesting statement, from a little further down: "No disputed issues of material fact exist such that an order in DC Comicsâ(TM) favor is entirely warranted."
Of course, as has been discussed on Slashdot many times, US intellectual property law is badly broken. In its current form, this area of law involves multiple ethical conflict of interests on the part of legal professionals as a class in society, and as such can reasonably be considered to violate fundamental rights. That in turn implies that enforcement of US intellectual property law, in its current form, is illegal.
We should be carefully examining the copyright, patent, and trademark systems as a whole, from an ethical perspective, and not preceding with any cases of this kind until the problems and the very serious ethics issues with this area of law have been resolved to the general satisfaction of society. But this legal professional apparently believes that consideration of facts alone, without consideration of the serious ethics problems, are sufficient to get a ruling in his or her favor. Do our legal professionals live in a fantasy world? Have they been getting away with ignoring ethics issues for so long that such things no longer matter?
A group of Germans at a place called Nuremberg once attempted to argue that violation of fundamental human rights while acting in the name of the law protected them from any consequences of their actions. Perhaps our legal professionals need to learn that lesson as well.
I would suggest that the original batmobile copyright then belongs to Ford, since it was a Lincoln that the car was built from. George Barris built it for 20th Century Fox, so they should sue Warner Bros next.