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A three-part test determines whether a character in a comic book, television program, or motion picture is entitled to copyright protection. First, the character must generally have physical as well as conceptual qualities. Second, the character must be sufficiently delineated to be recognizable as the same character whenever it appears. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance. Third, the character must be especially distinctive and contain some unique elements of expression. It cannot be a stock character such as a magician in standard magician garb. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard.
Plaintiff DC Comics (DC) was the publisher and copyright owner of comic books featuring the story of the world-famous character, Batman. Since his first comic book appearance in 1939, the Caped Crusader protected Gotham City from villains with the help of his sidekick Robin the Boy Wonder, his utility belt, and of course, the "Batmobile." DC filed a lawsuit in federal district court against defendant Mark Towle, doing business as Garage Gotham, alleging, among other things, causes of action for copyright infringement, trademark infringement, and unfair competition arising from Towle's manufacture and sale of replicas of the Batmobile. Towle denied that he had infringed upon DC's copyright. He claimed that the Batmobile as it appeared in the 1966 television show and 1989 motion picture was not subject to copyright protection. Alternatively, Towle argued that DC did not own the copyright in the Batmobile as it appeared in either production. Towle also asserted the affirmative defense of laches. The parties subsequently filed cross motions for partial summary judgment as to DC's trademark, copyright, and unfair competition claims, and as to Towle's laches defense. The district court granted in part and denied in part DC's motion for summary judgment, and denied Towle's cross motion for summary judgment. The parties thereafter entered into a joint stipulation in which they agreed that the district court would enter a judgment against Towle on DC's copyright infringement and other claims. The district court entered a judgment consistent with the stipulation, and Towle timely appealed.
Did Towle infringe DC's exclusive rights under a copyright when he built and sold replicas of the Batmobile, as it appeared in the 1966 television show and the 1989 film?
A panel of the United States Court of Appeals for the Ninth Circuit affirmed the district court's summary judgment in favor of DC. The panel held that the Batmobile, as it appeared in the Batman comic books, television series, and motion picture, was entitled to copyright protection because it, as an automotive character, was a sufficiently distinctive element of the works. The panel held that DC owned a copyright interest in the Batmobile character, as expressed in the 1966 television series and the 1989 motion picture, because it did not transfer its underlying rights to the character when it licensed rights to produce derivative works. The panel further held that Towle's replica cars infringed on DC's copyrights. The panel affirmed the district court's ruling that Towle could not assert a laches defense to DC's trademark infringement claim because he willfully infringed DC's trademarks.