A manufacturer of unlicensed Batmobile replicas has petitioned the U.S. Supreme Court to determine whether Batman's signature vehicle is indeed protected by copyright.
Towle, who produced replicas of the 1966 and 1989 Batmobiles that sold for as much as $90,000 each, was sued in 2011 by DC, which claimed copyright and trademark infringement, trademark counterfeiting and unfair competition. Towle had argued that the U.S. Copyright Act doesn't protect “useful articles,” defined as objects that have “an intrinsic utilitarian function" (for example, clothing, household appliances or, in this case, automobile functions); in short, that the Batmobile's design is merely functional.
However, a federal judge didn't buy that argument, ruling in February 2013 that, "The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”
Towle appealed that decision, but the Ninth Circuit Court of Appeals wasn't any more sympathetic to his cause, finding in September that, "the Batmobile is almost always bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle. This bat-like appearance has been a consistent theme throughout the comic books, television series, and motion picture, even though the precise nature of the bat-like characteristics have changed from time to time."
In his petition to the Supreme Court, Towle insists that the U.S. Copyright Office states outright that automobiles aren't copyrightable, and that the Ninth Circuit simply created an arbitrary exception. He also argues that there have been "dozens" of Batmobiles in DC comic books over the decades that "vary dramatically in appearance and style" -- so much so that the vehicle doesn't have the "consistent, widely-identifiable, physical attributes" required to be considered a "character."
The odds of the justices taking up Towle's case are pretty low: As we noted previously in the legal battle between Marvel and Jack Kirby's heirs, the Supreme Court accepts only 100 to 150 out of the more than 7,000 cases that it’s asked to review each year.