The Batmobile lawsuit on appeal

Posted by David Konow

When it comes to Batman, Warner Brothers is certainly very protective of its multi-billion dollar franchise.

In fact, the Dark Knight’s famed vehicle, the Batmobile, was recently the center of a legal battle between Warners and a custom car builder named Mark Towle, whose business goes under the moniker Gotham Garage.

 
When you visit the Gotham Garage website, Towle states that the molds for the car "were pulled directly from one of the four original Batmobiles from the 1966 TV show…" And the 1989 Batmobile replica is also reportedly built off a mold from one of the cars used in the film. 
 
Towle built a handful of Batmobile replicas for fans before this case was filed in May 2011. As the Hollywood Reporter notes about this particular lawsuit, which Towle lost, the key issue can be boiled down to the following question: "Should a car be protected by a copyright or not?"
 
In court papers, Towle stated, "This is a very important case that has far-reaching implications…the issue that will be decided will have a significant impact on automobile makers and manufacturers."
 
This also raises the question of whether fans are safe from building their own replicas of beloved geek objects like say, a Doctor Who TARDIS, or a full sized Millennium Falcon, which is actually being constructed by a team of dedicated fans right now. If you have the skills to build your own Batmobile, are you breaking the law by making one yourself?
 
In the case of Towle and Gotham Garage, which was filed in May 2011, the ruling laid down by U.S. District Court Judge Ronald Lew was that the Batmobile is "a copyrighted character…a derivative work can still infringe the underlying copyrighted work even if the derivative work is not independently entitled to copyright protection."
 
Representing Towle in this case is Larry Zerner, a former actor who had a small role in Friday the 13th 3D and is now a lawyer specializing in copyright and trademark law. Zerner told Popular Mechanics that in this case, "It seemed fairly clear to me. Automobiles are not copyrightable. This is an automobile."
 
The ’66 Batmobile was created by custom car legend George Barris, and as Zerner continues, "There was a design patent on the Batmobile by George Barris in 1966 and it expired in 1980. That design patent is in the public domain. The contract between Barris and Fox, who made the TV show. There was no transfer of rights that DC had."
 
As it turns out, there was legal precedent with this case regarding a car being considered a character in a film: Eleanor, the custom Shelby Mustang from Gone in Sixty Seconds. "I talked to the lawyer in that case," Zerner says. "Eleanor was a protectable character because it had (certain) characteristics, like it was hard to steal, and that may be characteristics of a character. But when a person makes a car, they’re not copying those characteristics, they’re copying a car. I think this is an important case in what are the limits of what are the copyrights for inanimate objects."
 
A request for an interview to J. Andrew Coombs, the defense attorney in the case, was forwarded to Warner Brothers, who sent TGDaily PDF files of the ruling, but declined to comment further on the case.
 
Now if you want to build your own Batmobile to drive around, the cops probably won’t pull you over and force you to dismantle it by order of Warner Brothers. 
 
Zerner explains, "As long as there’s no money being made, it’s not practical or realistic to think Warner Brothers would go after them. Warner Brothers has tried to stop people from showing replica cars, especially if they call it the Batmobile. The word Batmobile is a trademark. But as far as I know, I’ve never heard of a lawsuit by any studio against somebody who made their own light sabers, storm trooper costumes, etc. As long as they’re not selling it, the studios tend to not care. 
 
"The theory is somebody draws their own Batman comic book at home,” Zerner continues. “Is it technically a copyright violation? No one’s ever going to sue them for that. They could, but in reality, no one sues. If somebody made their own car for their own use, it would seem to be very unlikely, based on Warners’s past history, that the studio would sue them."
 
Zerner is appealing the case, and he told me, "My position on whether we’re correct legally hasn’t changed. I still feel Mark’s not violating any rights of DC. The cars are not copyrightable. To say there was protection for it, that was the design patent, which expired. That was our position all along. Whether the Ninth Circuit will agree with me or not, I don’t know."
 
Trying to go up against a major studio like this is always a modern day David and Goliath situation which Zerner is certainly well aware of. "I just wish I had bigger rocks!" he jokes.