Gotham Garage ’66 Replica                  

Batman  had a full roster of supporting characters, including Robin the Boy Wonder, Batgirl, even the ever faithful man servant Alfred. But there was a key player in this cast who has remained loyal since the 1960s yet never received so much as a screen credit: It’s the Batmobile, of course. Senior U.S. District Judge Ronald Lew, however, has recently extended legal protections to this venerable mechanical ace, ruling the Batmobile (1966 original, shown, near right) is a copyrighted character. This finding also means that custom car garage owner Mark Towle has violated trademarks and copyrights with his replicas.

Towle owns the appropriately named Gotham Garage, whose website boasts, “Imagine yourself in the Dark Knight’s rolling arsenal, cruising your Gotham streets. Gotham Garage offers you the most accurate fully loaded and drivable 1989 Batmobile Replica.” His inventory also includes replicas of vehicles from films like Herbie and The Munsters.When DC Comics, the owners of the trademark and copyright in the Batman franchise, learned of the copycat Batmobiles, they took Towle to court, asserting he violated their intellectual property rights.

To be clear, there was no dispute whether Towle copied the Batmobile design. As the pictures above show [courtesy www.extravaganzi.com and www.gothamgarage.net] , the naked eye can see the vehicles are impressively identical. It is an established tenant of copyright law, however, that “useful articles” (like cars) cannot be copyrighted. On the other hand, equally established is the principles that elements conceptually separable from the utilitarian may be protected. Or, “Conceptual separability exists where there is any substantial likelihood that even if the article had no utilitarian use, it would still be marketable to some significant segment of the community simply because of its aesthetic qualities.” Nimmer on Copyright§ 2.08(B) at 2-101.

Larry Zerner, Towle’s counsel, cautioned that unhappy precedent would be set if a utilitarian object like a car could be copyrighted. He noted that Warner subsidiary DC claimed the preponderance of the Batmobile — including its front grill, fenders, wheels, fins, cockpit and exhaust pipe — could be protected. He also quipped that if the ruling went against his client, major automakers would “start publishing comic books so that they could protect what, up until now, was unprotectable.”

But the judge saw it differently, finding the Batmobile as a whole was a character and could be copyrighted. In his opinion (thanks to The Hollywood Reporter for the court documents) he said, “The Batmobile is a character and exists in both two- and three-dimensional forms. Its existence in three-dimensional form is the consequence of the Batmobile’s portrayal in the 1989 live-motion film and 1966 television series.”