United States: Ninth Circuit Court Of Appeals: The Batmobile Is A Character Under Copyright Law – New, Three-Part Test For Determining Character Protection

DC Comics v. Mark Towle, 802 F.3d 1012 (9th Cir. 2015)

The U.S. Court of Appeals for the Ninth Circuit held that the Batmobile, Batman's famous car, is subject to copyright protection as a character, independent of any specific work in which it has appeared and irrespective of whether it "lacks sentient attributes and does not speak."  Fross Zelnick represented winning appellee DC Comics in the appeal.

Mechanic Mark Towle's business, which operated under the name "Gotham Garage," offered and sold knock-offs—or, in Towle's words, "replicas"—of DC Comics' Batmobile.  Customers could either provide a working automobile that Towle would alter for $90,000, or purchase a do-it-yourself kit.  Towle offered "replicas" of both the Batmobile that appeared in the Adam West television program in 1966 and the modernized Batmobile used in the motion picture starring Michael Keaton in 1989.  Towle's finished products of both models substantially resembled the originals and incorporated many of the Bat logos and distinctive (albeit non-functional) gadgets.  Towle's advertisements contained explicit references to DC Comics' trademarks and its Batman character.

The United States District Court for the Central District of California granted DC Comics' motion for summary judgment on its copyright, trademark, and unfair competition claims and held that the Batmobile is protectable as a character, notwithstanding that the character is an inanimate object.  The district court held that Towle infringed DC Comics' rights under copyright in both:  (i) the Batmobile as it appeared in the Batman comic books and (ii) the 1966 Batmobile and the 1989 Batmobile.  As for the comics, Towle conceded that DC Comics owns all rights in the comic books, but argued that his replicas did not infringe the comic Batmobile because they were copied from later works.  Towle argued strenuously that the many versions of the Batmobile over the decades, including the marked differences between the Batmobiles appearing in the earliest comic books and the 1966 and 1989 Batmobiles, undermined the similarity required to prove both an identifiable character and an infringement claim.  As for the 1966 and 1989 Batmobiles, Towle conceded that his replicas were close copies and therefore infringing, but argued that DC Comics did not own rights in those works.  After the district court ruled, the parties executed stipulations such that Towle could appeal.  In Towle's appellate brief, he largely conceded the trademark and unfair competition claims, focusing instead on the copyright claim. 

The circuit court, which issued its judgment after hearing oral argument, began by acknowledging the fame of the Batman character and the Batmobile.  And, while acknowledging the Batmobile's varied appearances over the last 75 years, the court noted the sufficiently consistent nature of the vehicle's iterations.  Although visually distinct from prior versions, the court explained that both the 1966 Batmobile and the 1989 Batmobile maintained a "bat-like appearance" and were "equipped with state-of-the-art weaponry and technology."  DC Comics v. Towle, 802 F.3d 1012, 1016-17 (9th Cir. 2015).  The court also noted that the agreements between DC Comics and the production companies responsible for making the TV show and film made clear that DC Comics had reserved all rights not specifically granted, including publication and merchandising rights.

The circuit court determined that "the Batmobile, as it appears in the comic books, television series, and motion picture, is entitled to copyright protection."  Id. at 1019.  Looking to precedent in the Ninth and Second Circuits, the court established "a three-part test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection," as follows:

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." 

Id. at 1021 (citations omitted).  "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."  Id.

The court found that these facts were sufficiently addressed by the lower court, such that no remand was required.  Applying the first prong of the test, the court held that "the Batmobile has appeared graphically in comic books, and as a three-dimensional car in television series and motion pictures."  Id.  For the second prong, the court provided, "the Batmobile has maintained distinct physical and conceptual qualities since its first appearance in the comic books in 1941," namely, "a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime," and a "bat-like . . . 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."  Id.  In addition, the court noted the Batmobile's "crime-fighting" nature with sleek and powerful characteristics that allow Batman to maneuver quickly while he fights villains."  Id.  Next, the court pointed to many highly literary descriptions in the comic books of the vehicle, including that it waits "'[l]ike an impatient steed straining at the reins . . . shiver[ing] as its super-charged motor throbs with energy' before it 'tears after the fleeing hoodlums' an instant later."  Id.  The vehicle's "ability to maneuver" and the manner in which it is weaponized and equipped with the latest technology and features further helped to delineate the vehicle such that it is consistent and identifiable.  Id. at 1022.  For the third prong, the court relied on the vehicle's "status as Batman's loyal bat-themed sidekick," together with both the many distinctive features that had satisfied the prior prongs and the Batmobile's unique and highly recognizable name.  These together rendered the Batmobile more than "a stock character," as required under the test.

The court considered and rejected two of Towle's arguments that the Batmobile was not subject to copyright protection as a character.  First, Towle insisted that non-conforming appearances of the Batmobile, including one in which the Batmobile appeared as an armored tank, destroyed the notion that the Batmobile was a singular, consistent character.  However, the court likened such inconsistencies to mere "costume changes," which do not undermine a character's identity.  "In context, the depictions of the Batmobile as a tank or missile promote its character as Batman's crime-fighting super car that can adapt to new situations as may be necessary to help Batman vanquish Gotham City's most notorious evildoers."  Id.

In addition, Towle sought to have a jury, not the court, determine "whether the Batmobile displayed unique elements of expression and consistent, widely identifiable traits."  Id.  However, because the facts were not in dispute, the court held that it was proper for the court to apply the facts to the law.  With that, the court concluded that the Batmobile is a copyright-protectable character under the 1976 Copyright Act. 

The court next rejected Towle's assertion that DC Comics lacks rights under copyright in the 1966 and 1989 Batmobiles.  Towle asserted that DC Comics' rights in the underlying comics were not sufficient to bring suit because Towle had admittedly copied the derivative Batmobiles from the television show and film, not the vehicles portrayed in the comics.  The court, however, made clear that a rights-holder can bring a claim against an infringer, even if the infringement is clearly of a derivative work, to the extent that the infringing work contains protectable elements of the original and to the extent that the original rights-holder retains ownership of the original work.  Given that the court had just held that the 1966 and 1989 Batmobiles were different iterations of the same character that appeared in the comic books, the 1966 and 1989 Batmobiles clearly contained protectable material from the underlying work.  And, since the replicas were slavish copies of the derivative works, and since DC Comics reserved all rights not conveyed in the agreements, the court held that DC Comics was able to assert copyright infringement against Towle.  Furthermore, the court noted that DC Comics had retained separate merchandising rights under the relevant agreements, giving DC Comics an additional basis for a copyright infringement claim against replica automobiles based on the television and film properties. 

Finally, the circuit court readily affirmed the lower court's finding of infringement.  It held that the district court had established that the Batmobile is protectable as a character under copyright law and that DC Comics possessed a copyright interest in the character as it is expressed in the 1966 and 1989 Batmobiles.  The evidence, including Towle's admissions that he had created replicas, permitted the district court to determine without further analysis that Towle had infringed DC Comics' rights. 

Owners of character-driven entertainment properties are likely to welcome this decision, which clarifies an expansive view of the protection accorded to characters – a position that underpins the latest notable decisions in this field.  And, as such rights-holders review the ruling, they may also enjoy the circuit court's light sprinkling of quips evocative of the original Batman television show, such as "To the Batmobile!" and "Holy copyright law, Batman!"

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 Mondaq.com.

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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