Protecting a Character Under Copyright: Supreme Court Denial in Batmobile Case Leaves Test Intact

Batmobile close

Thanks to the Supreme Court, the Batmobile still stands. As a literary character, that is. 

On March 7, the high court declined a petition to review DC Comics v. Towle. That leaves intact the current test created by a federal appeals court to determine if a literary character’s creator can stop the copying of that character under copyright law. 

In the case at hand, the denial means a California custom car and motorcycle builder, Gotham Garage’s Mark Towle, who makes Batmobile replicas, will have to live with a ruling that the Batmobile is a literary character in which DC Comics hold copyright interest. 

Ordinarily, a character by itself is not considered a sufficiently creative work to be accorded copyright protection separate from any larger work that it might appear in. No one can claim exclusive rights in a type of character. 

But there are cases showing that characters with very specific, defined characteristics—think Sherlock Holmes or James Bond-- can become protectable works of authorship in and of themselves. And there have been disputes over whether characters in a wide variety of media—including video games, novels, comic books and short, online comedy sketches—have infringed rights in characters from other works. 

Last year, U.S. Court of Appeals for the Ninth Circuit set forth three factors to determine if a character is protectable under copyright:  whether it has “physical as well as conceptual qualities,” consistent traits, and is especially distinctive or unique in some way. By contrast, back in 1954, the U.S. Court of Appeals for the Second Circuit created one test for a protectable character that’s especially distinctive or amounts to the “story being told.” 

In the Batmobile case, the Ninth Circuit test was applied to find that the vehicle was a protectable literary character. The test has also been applied in at least one another case to determine that a complaint by two video game makers failed to set forth specific details showing that certain characters were protectable and infringed by other video games. 

Towle disputed the court’s conclusion, arguing that it gave DC Comics copyright interest over something that federal copyright law did not intend to give—namely, a car that has not been consistently portrayed visually over the decades or displayed a “personality” as would be expected of a literary character.