Canada: To The Batmobile!: United States Court Of Appeals For The Ninth Circuit Rules That The Batmobile Is A Protectable Character And The Property Of DC Comics

Last Updated: October 1 2015
Article by Peter Henein

The Batmobile is a Character...

Holy copyright law, Batman!

In DC Comics v. Mark Towle, a recent decision of the Ninth Circuit Court of Appeal, the Court ruled in favour of DC Comics, holding that the Batmobile – the fictional supercar of fictional superhero Batman – is a character entitled to copyright protection. The decision of the three-judge panel was written, with appropriate comic-book flourish, by the Honourable Sandra S. Ikuta.

In 2011, DC brought a claim against Mark Towle, who built and sold replicas of the Batmobile as it appeared in the 1966 television show Batman (starring Adam West) and the 1989 motion picture BATMAN (directed by Tim Burton). The district court ruled in favour of DC. Mr. Towle appealed.

In her decision, Judge Ikuta reviewed the 80-year history of the Batmobile and noted that, while it has varied in appearance over the years, the Batmobile's name and key characteristics as Batman's personal crime fighting vehicle have remained consistent. It has, she noted, consistently been depicted in comics as possessing "bat-like external features, ready to leap into action to assist Batman in his fight against Gotham's most dangerous villains, and equipped with futuristic weaponry and technology that is 'years ahead of anything else on wheels'."

While the car, as it appeared in both the 1966 television show and the 1989 film, was not a direct copy of any iterations of the Batmobile as it appeared in the comic books, it maintained a bat-like physical appearance and was equipped with state-of-the-art crime fighting weaponry and futuristic technology. In both the television show and the film, DC had licensed the rights to the Batman literary property.

In his defence, Mr. Towle argued that the Batmobile as it appeared in the television show and the film was not subject to copyright protection and, alternatively, that DC did not own the copyright in the Batmobile as it appeared in either production.

In considering whether the Batmobile was entitled to copyright protection, Judge Ikuta noted that copyright protection extends not only to an original work as a whole, but also to "sufficiently distinctive" elements, like comic book characters, contained within the work. Although comic book characters are not mentioned specifically in the U.S. Copyright Act, courts have long held that such characters are afforded copyright protection and that characters in a television series or a motion picture may also be entitled to copyright protection.

Judge Ikuta cautioned that not every comic book, television, or motion picture character is entitled to copyright protection, and that copyright protection is available only "for characters that are especially distinctive." To meet this standard, the character must be "sufficiently delineated" and display "consistent, widely identifiable traits."

Notably, the Ninth Circuit has previously held that an automotive character can be copyrightable. In Halicki Films LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1224 (9th Cir. 2008), the Court found that "Eleanor," a car that appeared in both the original 1971 and 2000 remake of the motion picture Gone in 60 Seconds, was entitled to copyright protection as a character.

According to the US cases canvassed by Judge Ikuta, a character may be protectable if it has distinctive character traits and attributes, even if the character does not maintain the same visual appearance in every context. The presence of other distinctive qualities, visual or not, can diminish or even negate the need for a consistent visual appearance.

Pointing out that district courts have previously found that James Bond, Batman and Godzilla are characters protected by copyright, despite their changes in appearance, Judge Ikuta articulated the following three-part test for determining whether a character in a comic book, television program or motion picture is entitled to copyright protection:

  1. The character must generally have "physical as well as conceptual qualities."
  2. 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 it need not have a consistent visual appearance.
  3. 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 the standard.

Judge Ikuta found that the Batmobile met all three steps of this test. For example, the Batmobile is "almost always bat-like in appearance, with a bat themed front and back wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle." She also found that 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." The Court concluded that the Batmobile is a character that qualifies for copyright protection.

In response to Mr. Towle's argument that the Batmobile has at times appeared without its signature sleek "bat-like" features, Judge Ikuta wrote that a consistent appearance is not as significant as consistent character traits and attributes, likening the different iterations of the car to James Bond changing from blue swimming trunks to his classic tuxedo in Casino Royale.

In response to Mr. Towle's argument that DC did not own any copyright interest in the 1966 and 1989 productions, Judge Ikuta noted that, under the U.S. Copyright Act, the owner of a copyright has a number of exclusive rights, including the right to prepare derivative works and to authorize others to do the same. Therefore, when DC authorizes a third party to prepare a derivative work, DC retains copyright in that derivative work with respect to all of the elements that the derivative creator drew from the underlying work and employed in the derivative work. The creator of the derivative work has a copyright only as to those original aspects of the work that the derivative creator contributed, and only to the extent the derivative creator's contributions are "more than trivial." If the material copied was derived from a protected underlying work, this will constitute an infringement of such work regardless of whether the defendant copied directly from the underlying work, or indirectly via the derivative work.

Applying these principles, the court concluded that DC owned a copyright interest in the Batmobile character as it was depicted in both the 1966 and the 1989 productions.

As the copying of the substance of the entire work was admitted, the court did not need to apply its usual two-part "substantial similarity" test to determine whether DC had established copying of the constituent elements of the work that are original.

Consistent with Canadian Copyright Law

The decision in this case is consistent with Canadian copyright law.

While Canadian courts have not considered this exact scenario, a number of decisions dating as far back as the 1950s have considered the extension of copyright protection to specific elements of a work, including three-dimensional derivatives of literary works. For example:

  • In King Features Syndicate, Inc. et al. v. Lechter, [1950] Ex. C.R. 297, the Exchequer Court of Canada considered whether the defendant was infringing copyright by designing wristwatches with "Popeye-like" characters on the face of the watches. The Exchequer Court held that there were many substantial resemblances to the original Popeye comic strip character and, as such, it was a colourable imitation of the features of the plaintiff's work in which copyright subsisted.
  • In Preston v. 20th Century Fox Canada Limited, et al., [1990] F.C.J. No. 1011, the Federal Court of Canada considered whether Ewok characters in the plaintiff's script were protected by copyright and, if so, whether that copyright had been infringed by the creators of the Star Wars films. In reviewing the Ewok characters as they appeared in the plaintiff's script, the Federal Court concluded that the characteristics set out in the script did not delineate the Ewok characters sufficiently distinctly to warrant recognition as characters subject to copyright, noting in part that it was difficult to distinguish the Ewok characters from other characters in the script.
  • In Anne of Green Gables Licensing Authority Inc., et al. v. Avonlea Traditions Inc., [2000] O.J. No. 740, the Ontario Superior Court of Justice considered whether the physical image and personal qualities of the literary character Anne of Green Gables were protected by copyright. After reviewing a number of specific descriptive passages from the literary work, Anne of Green Gables, the Superior Court concluded that it contained a detailed verbal portrait that captured Anne's physical image and her personal qualities – a portrait of which was held to be protected by copyright.

As such, the reasoning in DC Comics v. Mark Towle is both consistent with, and provides a logical extension of, copyright law in Canada as well.

To quote Judge Ikuta, herself quoting Batman: "In our well-ordered society, protection of private property is essential."

Well, three Bat-Cheers to that!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Peter Henein
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions