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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.
Cam Corvette, charismatic leader
Johnny Pinto, able to burst into flame
Suzy Smartcar, tiny but strong
and of course, The VW Thing
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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.
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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.
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