We’ve mentioned a few times here a lawsuit for copyright infringement by DC against an outfit called Gotham Garage, which sells replica Batmobiles—based on the ’60s Batman TV show in particular—as well as other vehicles based on famed fantasy cars, like the Mach Five.
If you were thinking of buying one, better hurry, because a judge has ruled that the Batmobile is subject to copyright.
Well of course it is, you may be saying. But that’s not actually the usual legal thinking. A car design is subject to trademark but not copyright. Gotham Garage owner Mark Towles argued that the Copyright Act can’t be extended to “useful articles” like a car. But the judge ruled that….the Batmobile isn’t really that useful, so that argument ran out of gas on the way back to the Batcave.
The judge ruled that Towles “ignores the exception to the ‘useful article’ rule, which grants copyright protection to nonfunctional, artistic elements of an automobile design that can be physically or conceptually separated from the automobile.”
According to The Hollywood Reporter, a can of worms has been set loose by this ruling and other similar recent cases where copyright and ordinary use run afoul:
The copyrightability of designs has been a hot topic of late in courts. Could Batman’s costume be copyrighted? A lawsuit claiming copyright infringement in superhero costumes was settled in December before a judge gave a firm answer. Could Batman’s furnished dark cave hideaway be copyrighted? Hard to say for sure, but a judge rejected earlier this month a claim that furniture designs met the standard for being conceptually separable from their utilitarian purposes.
In other words, just because a chair is made to fit the expanding American butt, it isn’t just utilitarian, it’s designed…and maybe copyrightable.
Our legal knowledge being limited, we’re going to just shut up and yell, “Hey Jeff Trexler!”
UPDATE: Okay Maybe we don’t need Jeff Trexler. After looking at the court docs, it doesn’t look like this case has been settled one way or another—the judge has ruled against Towle’s motion to dismiss, but the most recent filing is not a definitive ruling.
Here’s the original complaint:
Click to access 031112284250.pdf
and the most recent motion:
Click to access 031113891258.pdf
I don’t understand how this case ever got to court.
Exactly how many of these replica cars are being made each year? A dozen, maybe?
So it’s not like the builder of these cars is taking some significant revenue stream from the copyright owners. In fact, each car is a marketing boon for Warner every time one drives down the street or appears at any public event.
Think the Oscar Mayer Weinermobile fleet of eight vehicles, folks, which Oscar Mayer has to foot the entire bill for — to the tune of millions of dollars.
Yet here we have a case of Warner getting absolutely free publicity for its Batman brand, yet some narrow-minded corporate minion opts to file an expensive lawsuit to STOP getting such free publicity???
Warner ought to be ENCOURAGING these guys to make the replicas!!! Instead, they are shelling out big dough to stop them.
It’s mind-boggling!
I can’t believe a couple of phone calls and a simple handshake or legal agreement between the two parties could not be reconciled in an amicable fashion.
Ut oh… what about Alex Ross’ Studebaker® Batmobile©®?
“So it’s not like the builder of these cars is taking some significant revenue stream from the copyright owners. In fact, each car is a marketing boon for Warner every time one drives down the street or appears at any public event.”
Ah, yes, the “free publicity” argument that internet pirates use.
Now, Warners could exhibit the cars themselves, and make some money. Or could decide to not exhibit the cars. That’s what copyright means… the owner gets to decide what gets copied.
Also, what happens if one of those Batmobiles gets in a car accident? Or someone gets injured from the flame thrower exhaust on the television Batmobile? Does Warners want that “free publicity”?
None of those “what-ifs” wash. Internet piracy and building replica Batmobiles are so far removed from each other, the comparison is laughable.
The former involves the loss of significant revenue streams and the actual theft of entire works. The latter does not, and it certainly does not warrant an expensive lawsuit. As I said, it is something that should have been worked out during a lunch or via a couple of phone calls.
As for the other “what ifs,” I’ll again point to Oscar Mayer. Their vehicles also pose the same publicity “risk,” yet they’ve kept the program going, at considerable expense, since 1936.
As any good marketing person knows, if the benefits greatly outweight the risks, then the publicity is well worth it.
Holy shit.
My friends and I build replica stuff the Tardis or scale anime swords and various costumes. Does that mean that soon enough cosplaying will be outlawed in America due to copyright infringement? Will there come a day where you can’t cosplay Batman unless you’re wearing a crappy officially licensed costume to a con? Where does this damn road end?
I don’t see DC getting in the market for building custom Batmobiles, so why the hell are they stepping on the toes of fans who want to buy them and the people who are willing to put so much effort in making one for them?
There is a company called Fiberglass Freaks, which makes and sells replica Batmobiles under an official license deal with DC. If DC hadn’t done anything about Gotham Garage (which directly competes with an official licensee), then DC would have been in danger of being sued by Fiberglass Freaks.
“Exactly how many of these replica cars are being made each year? A dozen, maybe?
So it’s not like the builder of these cars is taking some significant revenue stream from the copyright owners.”
Yeah but that probably still ends up being more cash than all of the New 52 Batman titles!
Oh wow. DC actually did have a license with this company for this stuff. Well that kinda changes the game. Too bad Gotham Garage didn’t try to apply for that too. My friends who do custom props would love to get official with some parent company like that. Then again, who knows if Warners was asking some kinda crazy free that they couldn’t afford or what the deal was.