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By Anandashankar Mazumdar
Jan. 22 — A federal appeals court erred in ruling that the Batmobile was a literary character protectable under federal copyright law, according to a petition for Supreme Court review filed Jan. 21.
Mark Towle—the owner of a custom auto garage that builds replicas of Batman's vehicle from the 1960s TV show and more recent Batman movies—is asking the Supreme Court to overturn a ruling won by DC Comics—the publisher that owns the Batman franchise—back in September. DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015).
The petition argues that a ruling by the U.S. Court of Appeals for the Ninth Circuit gives DC Comics exclusive ownership of automobiles, which are useful items and not the kinds of creative works of expression that are supposed to be protected by copyright law.
The petition also argues that, since the first appearance of the Batmobile in comic books, there has been no consistent set of characteristics that define the protected character— if an automobile with no personality can even be considered a literary character.
The petition presents the following questions to the Supreme Court:
1. Whether a court may judicially create a subject of copyright that was specifically and expressly excluded by Congress as such when Congress enacted The Copyright Act, thus circumventing the clear mandate of Congress and the U.S. Copyright Office;
2. Whether an automobile that does not display any personality traits or any consistent and widely-identifiable physical attributes can be separately protected by copyright as a “character”; and
3. Whether a determination of substantial similarity of protected expression must be made in a copyright case, independent of proof of copying.
The petition was filed with the counsel of McPherson Rane LLP, Los Angeles.
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