IMG_0313Na-na-na, Batman! Or should we say  Dark Knight or Caped Crusader? There have been many versions of Batman since the character launched in 1939. Each new Batman movie or television show brought not only new nicknames and new actors but also various Batmobiles. Each vehicle has differed — from Adam West’s convertible to George Clooney’s limo to Christian Bales’ motorcycle tank to Ben Affleck’s  dune buggy.

But now the U.S. Supreme Court has been asked to decide if the car that helps the caped crusader thwart evil is so distinctive to Batman to merit copyright as an intrinsic part of the literary character. As this blog noted earlier, the appellate decision that prompted this high court appeal was a surprise because it extended copyright where it never had gone before — to a car and its design.

In September, the U.S. Ninth Circuit Court of Appeals ruled that the Batmobile was protected and that auto designer Mark Towle infringed DC Comic’s copyrights by creating and selling replicas of the comic vehicles. Towle and his lawyers argue that the appellate judges erred in protecting the Batmobile. They say a car does not posses the requisites for copyright as a “literary character.”

Key questions

The petitioners pose three questions-arguments to the justices:

  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.

Part of this challenge attacks another layer of analysis a federal judge added — and the appellate judges endorsed — to functional elements and their copyright as “literary characters.” For example, if a production company wanted to create a television series for Wonder Woman, the question would be whether  the company should license both the heroine and her magical lasso or just her. Petitioners say if the current ruling stands, licensees might be needing to get permission for such a character’s every bead, bangle, and bauble, all of which later might be found intrinsic to her character.

New clarity, odds of certiorari

That potential tedious prospect for production companies and others aside, some saw the appellate ruling offering new clarity for owners as to what can be copyrighted about a character in a visual work. Rights holders now can protect not just their characters but what makes them distinctive in the same media or even new media, like replicas.

As one analyst points out, the high court routinely is slammed with cases and prospects may be slight for the nine, black-robed justices to take up the Batmobile dispute.