Slashdot Mirror
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.
"The Exploding Pinto Man and His Bubbly Sidekick Pacer"
Worst. Comic. Ever.
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.
.... 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
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
In exactly the same way as you seem to be able to patent something that you have not made.
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.
Automakers do not have to copyright their designs, they trademark aspects of them. They also patent aspects of them, and generally only defend those patents and trademarks when others attempt to build new vehicles of mass production.
This gentleman is reproducing something by modifying an existing car to look like another modified car. DC nor the TV producers built the car from scratch, they modified a design for a concept car from Ford using existing Ford chassis to make their batmobile. Arguably, theirs is a derivative work in of itself, which should significantly reduce their ability to claim harm from others also making derivative works.
Do not look into laser with remaining eye.
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.
It's just like clothing. You can't copyright a clothing design, but you can copyright the artwork on it. I can make as many replicas of a $1000 Dolce and Gabbana shirt that I want and sell them for $10 as long as I don't brand them with "Dolce and Gabbana", and it's fair game. But I can't make a t-shirt with a Battlestar Galactica logo and sell it. So in this case, I think he should be allowed to make the car, but he can't put a Batman logo on it without a license...
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?
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.
[How can you copright] Something you can't competitively provide to the public?
Let's turn back the clock to the 80's or 90's before the Internet really got big..
The following scenario doesn't apply to the batmobile issue, but it DOES apply to your train of thought which I've heard from others before...
Young Author: This is great, my new concept of a super hero with backstory X, costume Y, and logo Z is a great idea! I've had it since childhood. Let me just get a copyright and stuff. Maybe show off a self-printed Issue #1 at a covention. I could probably find a printer to make some copies, I could probably sell a few dozen copies.
Evil Publisher: Hey Bob, I was at the convent and I saw a possible new idea for a hero we could use. Let's release it.
(A few months later)
Young Author: W T H! That was my idea. It has the same backstory, costume, and flippin' logo! I copyrighted it and everything. You're selling thousands of copies all around the country!
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.
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).
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.
How much artwork can he put on it then? Can build a replica and paint it purple? Can he paint it purple and put a yellow oval on the doors? Can he paint it purple with a yellow oval, and put a black baseball bat in the oval? Can he put a not-DC-licensed Batman stylized bat in the oval? Can he sell the car with cans of purple, yellow, and black paint, and say "here you go, one not-Batmobile, and a set of not-official not-Batmobile paints"?
Are the non-structural, non-functional elements artistic? Can he put fins on it, or a blue glowing nuclear powered turbine engine on the back?
There's all kinds of lines that could be crossed here that I think it would take a judge to sort them all out.
John
[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
That would depend on where he got the logo from, and if the logo's production was licensed. If he bought a licensed logo from a store and slapped it on then I don't see a violation. It would also depend on if the show has fallen into the public domain. I had heard, for example, that at least the first season Star Trek had fallen into the public domain because its copyright wasn't renewed, but currently I can't find any evidence of that, but if it's true then it would possibly be legal to use elements from Star Trek in other things without royalties.
Do not look into laser with remaining eye.
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.
What does providing it to the public have to do with anything? Just because I can't, or won't sell something, doesn't men I can't copyright it.
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
Disney has plenty of copyrights they don't sell. They sell for a while, then they stop selling for years at a time.
> It's as complicated as defining "life" in abortion vs. pro life cases.
The cells are alive.
You're an idiot.
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
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?
That would depend on where he got the logo from, and if the logo's production was licensed. If he bought a licensed logo from a store and slapped it on then I don't see a violation. It would also depend on if the show has fallen into the public domain. I had heard, for example, that at least the first season Star Trek had fallen into the public domain because its copyright wasn't renewed, but currently I can't find any evidence of that, but if it's true then it would possibly be legal to use elements from Star Trek in other things without royalties.
I doubt that that is true. Taking a clip from one of the out-of-copyright Superman cartoons and plastering it on a T-Shirt for sale is going to run you into Warner's Trademark lawyers.
I would assert that Brad Pitt ripping your testicles from you loins should you ever actually mail any of those letters, renders your potential Jolie babies permanently nonexistent and therefore moot ;-)
Being one of those that does aftermarket stuff with cars, car manufacturers seem to not have a problem with auto enthusiasts plastering the manufacturer's name all over the vehicle in all but the weirdest of cases. It's free advertising for them, and for the most part, restorers look to do a good job with a restoration.
Do not look into laser with remaining eye.
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.
I had no idea how unoriginal the "original" (liveaction) batmobiel was!
The Ford Futura. Humph.
THINK! It's patriotic