"Bams!" and "Pows!" Continue in DC Comics' Batmobile Infringement Lawsuit

"Bams!" and "Pows!" Continue in DC Comics' Batmobile Infringement Lawsuit

Back in the '60s, Batman, as played by Adam West, starred in a campy television show, complete with Burgess Meredith as the Penguin and Cesar Romero as the Joker. The whole thing was made extra campy by the insertion of comic book onomatopoeia (i.e., forming a word by imitating a sound) during the fight scenes. For example:

"Pows!" and "Bams!" are threatening enough, but what would the Riddler have thought if Batman's punches had included a legal threat:

One man faced just such a punch, and today, the fight continues.

In 2011, DC Comics accused Mark Towle of infringing Batman copyrights and trademarks by manufacturing and selling counterfeit Batmobiles.  This past Saturday, as reported by ABC News, the original Batmobile was auctioned for $4.62 million.

Last month, both Towle and DC Comics moved for summary judgment. DC Comics pointed out that Towle identifies his automobiles as Batmobiles, the same term DC Comics uses to refer to its full-size and toy versions of automobiles.

"The ... Trademarks," DC Comics argued, "are so linked to the BATMAN property and DC Comics in the minds of consumers that Defendant's unauthorized products, using the DC Comics Trademarks, will unquestionably confuse any third-party observers."

On the copyright claim, DC Comics is seeking protection for the 1966 and 1989 Batmobiles. The claim rests upon the assertion that characters visually depicted in comic books, motion pictures or television programs may be afforded copyright protection if they are sufficiently distinctive.

"The Batmobile Vehicles are never referred to simply as 'cars,'" DC Comics argued, "but rather always by name - BATMOBILE. They interact with the BATMAN and ROBIN characters and serve as integral parts of the stories being told by the respective comic books, television programs and motion pictures in which they appear. Thus, the Batmobile Vehicles are entitled to copyright protection."

Towle attacked DC Comics' copyright claim, arguing that the case is "very important" because the issues decided will have a significant impact on automobile makers and manufacturers.

"It is black letter law," Towle said, "that useful articles, such as automobiles, do not qualify as 'sculptural works' and are thus not eligible for copyright protection."

In his motion for partial summary judgment, Towle claimed DC Comics is seeking an exception to the rule; specifically, if a "different version of the vehicle" once appeared in a comic book, then the rule does not apply.

"The implications," he said, "of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable."

Towle pointed to DC Comics argument that it is not seeking protection for the entire design of the vehicle, only the separable, non-functional, artistic elements. Towle specically called this a "lie."

"If DC," he argued, "were to prevail under these standards it would mean an end to the rule that useful articles are not copyrightable and would completely upend existing copyright law."

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